United States District Court, S.D. California
(1) GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS (ECF, 2); AND
(2) DISMISSING COMPLAINT WITHOUT PREJUDICE FOR LACK
OF STANDING AND FOR FAILURE TO STATE A CLAIM
CYNTHIA BASH ANT UNITED STATES DISTRICT JUDGE.
Jared Benjamin Mimms is proceeding pro se-without an
attorney. He filed a handwritten complaint on March 14, 2017,
against the State of California, an individual identified as
“Josh, ” the “In Home Outreach Team,
” and the County of San Diego. He seeks millions of
dollars in damages arising out of an alleged assault and
threatened kidnapping. Plaintiff has also filed a motion
seeking leave to proceed in forma pauperis
(“IFP”)-without prepaying court fees or costs.
following reasons, the Court GRANTS Plaintiff's motion to
proceed IFP and DISMISSES WITHOUT PREJUDICE his Complaint for
lack of standing and for failure to state a claim upon which
relief may be granted.
MOTION FOR LEAVE TO PROCEED IFP
28 U.S.C. § 1915, a litigant who because of indigency is
unable to pay the required fees or security to commence a
legal action may petition the court to proceed without making
such payment. The determination of indigency falls within the
district court's discretion. Cal. Men's Colony v.
Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that
“Section 1915 typically requires the reviewing court to
exercise its sound discretion in determining whether the
affiant has satisfied the statute's requirement of
indigency”), rev'd on other grounds, 506
U.S. 194 (1993). It is well-settled that a party need not be
completely destitute to proceed IFP. Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). To satisfy the requirements of 28 U.S.C. §
1915(a), “an affidavit [of poverty] is sufficient which
states that one cannot because of his poverty pay or give
security for costs . . . and still be able to provide himself
and dependents with the necessities of life.”
Id. at 339. At the same time, however, “the
same even-handed care must be employed to assure that federal
funds are not squandered to underwrite, at public expense . .
. the remonstrances of a suitor who is financially able, in
whole or in material part, to pull his own oar.”
Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I.
courts, therefore, tend to reject IFP applications where the
applicant can pay the filing fee with acceptable sacrifice to
other expenses. See, e.g., Stehouwer v.
Hennessey, 841 F.Supp. 316, 321 (N.D. Cal. 1994)
(finding that the district court did not abuse its discretion
in requiring a partial fee payment from a prisoner who had a
$14.61 monthly salary and who received $110 per month from
family), vacated in part on other grounds by Olivares v.
Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover,
“in forma pauperis status may be acquired and
lost during the course of litigation.” Wilson v.
Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL
311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing
Stehouwer, 841 F.Supp. at 321); see also Allen
v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29,
1995) (holding that a plaintiff who was initially permitted
to proceed in forma pauperis should be required to
pay his $120 filing fee out of a $900 settlement). Finally,
the facts as to the affiant's poverty must be stated
“with some particularity, definiteness, and
certainty.” United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981).
read and considered Plaintiff's application, the Court
finds that Plaintiff meets the requirements in 28 U.S.C.
§ 1915 for IFP status. Plaintiff is unemployed and
receives $337.00 per month in public assistance. (IFP Mot.
¶¶ 1, 2, ECF No. 2.) He does not own an automobile,
real estate, or any other significant asset. (Id.
¶¶ 4-6.) His savings consist of $50.00 in cash.
(Id. ¶ 4.) Under these circumstances, the Court
finds that requiring Plaintiff to pay the court filing fees
would impair his ability to obtain the necessities of life.
See Adkins, 335 U.S. at 339.
light of the foregoing, the Court GRANTS
Plaintiff's application for leave to proceed IFP (ECF No.
UNDER 28 U.S.C. § 1915(e)(2)
complaint filed by a plaintiff proceeding in forma
pauperis is subject to screening under 28 U.S.C. §
1915(e)(2). Calhoun v. Stahl, 254 F.3d 845, 845 (9th
Cir. 2001) (per curiam). This provision requires the court to
review the complaint and dismiss the action if it: “(i)
is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2).
determine whether the action must be dismissed under the
second ground- a failure to state a claim-the court applies
“the familiar standard of Federal Rule of Civil
Procedure 12(b)(6).” Rosati v. Igbinoso, 791
F.3d 1037, 1039 (9th Cir. 2015).
this standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ” Akhtar
v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” I ...