United States District Court, S.D. California
DEREK J. MORRIS, Plaintiff,
DEPARTMENT OF THE NAVY, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED
IN FORMA PAUPERIS AND DISMISSING ACTION WITHOUT
PREJUDICE (ECF No. 2).
Janis L. Sammartino United States District Judge.
before the Court is Plaintiff Derek J. Morris's Motion to
Proceed In Forma Pauperis (“IFP”).
(“IFP Mot., ” ECF No. 2.) Plaintiff appears to
have appealed his removal by the Navy on allegedly
discriminatory grounds to the United States Court of Appeals
for the Federal Circuit, which recently transferred the case
to this Court because it lacked jurisdiction to review
Plaintiff's appeal. (Compl., ECF No. 1-26 (Order
Transferring Case).) The Federal Circuit also transferred
Plaintiff's Motion to Proceed IFP, which is now pending
before the Court.
parties instituting any civil action, suit, or proceeding in
a district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of $400.
See 28 U.S.C. § 1914(a). An action may proceed
despite a plaintiff's failure to prepay the entire fee
only if he is granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). See
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
A federal court may authorize the commencement of an action
without the prepayment of fees if the party submits an
affidavit, including a statement of assets, showing that he
is unable to pay the required filing fee. 28 U.S.C. §
present case, Plaintiff has not prepaid the required $400
filing fee, but has instead filed an application to proceed
IFP pursuant to 28 U.S.C. § 1915(a). (See
generally IFP Mot.) “One need not be absolutely
destitute to obtain [the] benefits of the in forma pauperis
statute, ” Jefferson v. United States, 277
F.2d 723, 725 (9th Cir. 1960), and “there is no formula
set by statute, regulation, or case law to determine when
someone is poor enough to earn IFP Status, ”
Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir.
2015). However, a plaintiff must allege poverty “with
some particularity, definiteness and certainty.”
Escobedo, 787 F.3d at 1234. This is because
proceeding IFP is a privilege and not a right, and the
decision to grant or deny an IFP petition “is a matter
within the discretion of the trial court . . . .”
Weller v. Dickson, 314 F.2d 598, 600 (9th Cir.
present case, Plaintiff's affidavit indicates that he has
an average monthly income from retirement benefits of $2, 500
and expects the same payment next month. (IFP Mot.
3-4.) Additionally, Plaintiff's spouse
has an average monthly income of $9, 348 (from employment and
real property), and expects the same payment next month.
(Id.) Plaintiff estimates his monthly expenses to be
$3, 060, and his spouse's expenses to be $7, 149,
including $500 for recreation and entertainment.
(Id. at 6-7.) Plaintiff also owns a home valued at
$450, 000 and another piece of real estate valued at $400,
000. (Id. at 5.) He also owns a car valued at $2,
500, and his spouse owns a car valued at $15, 000.
(Id.) Plaintiff has savings in the amount of $1,
500, and his spouse has savings in the amount of $3, 500.
(Id.) Plaintiff also indicates that he has paid or
will pay an attorney $10, 000 to assist him with this case.
(Id. at 7.)
Plaintiff's Motion currently stands, the Court is not
convinced that IFP status should be granted. Plaintiff
principally argues that he “is not willing to exhaust
his veteran pension to school loans and a matter involving
the Merit Systems Protection and Department of the Navy,
” (id. at 3), but his affidavit demonstrates
that he-and his spouse-can cover the initial filing fee.
Plaintiff further argues that his spouse “has nothing
to do with the federal question jurisdiction” of this
case, (id.), but Plaintiff does not otherwise
declare that his spouse is unwilling or unable to assist with
the payment of this initial filing fee.
Plaintiff's IFP Motion fails due to the above
deficiencies, the Court need not address the additional
requirements for granting an IFP Motion under 28 U.S.C.
§ 1915. However, the Court nonetheless notes that it
appears Plaintiff's complaint may fail for lack of a
short and plain statement, see Fed. R. Civ. P. 8(a),
and for failure to state a claim on which relief may be
granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), 5
U.S.C. §§ 7702, 7703(b)(2).
Plaintiff's IFP Motion (ECF No. 2) is
DENIED and the action is DISMISSED
WITHOUT PREJUDICE for failure to prepay the $400
filing fee required by 28 U.S.C. § 1914(a).
Plaintiff is GRANTED forty-five (45)
days from the date on which this Order is electronically
docketed in which to re-open his case by either: (1) paying
the entire $400 statutory and administrative filing fee, or
(2) filing a new IFP Motion that addresses the above
shortcomings identified by the Court. Failure to re-open
this case in the time allotted may result in a dismissal of
this case with prejudice.
IS SO ORDERED.