Frost v. Child and Family Services of San Bernardino County

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RYAN FROST, Case No.: 3:20-cv-2402-JLS-BLM 12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IFP 14 CHILD AND FAMILY SERVICES OF SAN BERNARDINO COUNTY, and (ECF No. 6) [15] SAN BERNARDINO JUVENILE 16 COURT, 17 Defendants. [18] 19 Plaintiff Ryan Frost, proceeding pro se, filed this action against Defendants Child 20 and Family Services of San Bernardino County and San Bernardino Juvenile Court on 21 December 8, 2020. See ECF No. 1. Plaintiff is alleging Fourth and Fourteenth 22 Amendments violations based on Defendants placing Plaintiff’s three children in foster 23 care. When Plaintiff failed to pay the filing fees required by 28 U.S.C. § 1914 (a), the Court 24 dismissed Plaintiff’s action but granted him leave to either pay the filing fee or file a motion 25 to proceed in Forma Pauperis (“IFP”). ECF No. 4. Plaintiff subsequently filed the present 26 Motion for Leave to Proceed IFP (“Mot.,” ECF No. 6). For the reasons set forth below, 27 the Court DENIES Plaintiff’s Motion to Proceed IFP with leave to pay the filing fee. 28 /// 1 Under 28 U.S.C. § 1915 (a), the Court may authorize a plaintiff to pursue a case 2 without payment of the filing fee. Whether an affiant has satisfied § 1915(a) falls within 3 “the reviewing court[’s] . . . sound discretion.” California Men’s Colony v. Rowland, 939 4 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993). A party need 5 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., [6] 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty 7 ‘with some particularity, definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d 8 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir. 9 1981). “An affidavit in support of an IFP application is sufficient where it alleges that the 10 affiant cannot pay the court costs and still afford the necessities of life.” Id. “But, the same 11 even-handed care must be employed to assure that federal funds are not squandered to 12 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who 13 is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. 14 Supp. 848, 850 (D. R.I. 1984). 15 In Escobeda, for example, the filing fees constituted 40% of the plaintiff’s monthly 16 income before factoring in her expenses. Escobedo, 787 F.3d at 1235. Taking into account 17 the plaintiff’s rent and debt payments, the filing fee would have required the entirety of 18 two months’ worth of her remaining funds, meaning that the plaintiff “would have to forgo 19 eating during those sixty days, to save up to pay the filing fee.” Id. Under those 20 circumstances, the Ninth Circuit determined that paying the filing fee would constitute a 21 significant financial hardship to the plaintiff. Id. Accordingly, the court reversed the 22 magistrate judge’s ruling denying the plaintiff IFP status. Id. at 1236. 23 Here, the Court concludes that Plaintiff has not met his burden of demonstrating that 24 payment of the filing fee would constitute an undue financial hardship. The IFP application 25 indicates that Plaintiff’s monthly income is $4,000.09. (Mot. at 1.) Plaintiff indicates he 26 has no assets and $0 in cash or in a checking or savings account. (Id. at 2.) Plaintiff’s 27 /// 28 /// 1 ||monthly debts and obligations total $3,231.! (/d.) Plaintiff lists attorney’s fees and bail 2 || totaling $400 under outstanding debts. (/d.) Plaintiff’s wife is the only person dependent 3 him for support. Ud.) The amount of money Plaintiff indicates he expects to continue 4 receive on a monthly basis exceeds his monthly debts and obligations by more than 5 ||$750. Before factoring in expenses, the filing fee constitutes 10% of Plaintiff’s monthly 6 || income. 7 Based on this information, the Court finds Plaintiff has not shown he cannot pay the 8 || court costs and still afford the necessities of life. The amount of money Plaintiff indicates 9 ||he expects to receive on a monthly basis exceeds his expected monthly debts and 10 || obligations by enough that he could pay the one-time filing fee without impacting his 11 |/regular expenses. 12 CONCLUSION 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff's Motion to Proceed IFP (ECF No. 6) is DENIED; 15 2. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure 16 prepay the filing fee mandated by 28 U.S.C. §1914 (a); and 17 3. Plaintiff is GRANTED thirty (30) days from the date on which this Order is 18 || electronically docketed in which to reopen his case by paying the entire $402 statutory and 19 || administrative filing fee. 20 If Plaintiff fails to pay the $402 filing fee in full, this action will remain dismissed 21 || without prejudice pursuant to 28 U.S.C. § 1914 (a), and without further Order of the Court. 22 IT IS SO ORDERED. 23 Dated: March 30, 2021 . tt 24 jae Janis L. Sammartino 25 United States District Judge [26] 27 ||" Plaintiff incorrectly states his total monthly expenses equal $3,381. (Mot. at 2.) Plaintiff lists his 2g expenses as mortgage ($ 1423); transportation ($200); utilities ($420); auto loans ($988); and auto insurance ($200). Ud.) This equals a total of $3,231.