Nash v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CHOCOLATE N., Case No.: 3:22-cv-1026-KSC 12 Plaintiff, ORDER DIRECTING 13 v. COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 11 14 KILOLO KIJAKAZI, Acting AND DENYING APPLICATION TO Commissioner of Social Security, 15 PROCEED IN FORMA PAUPERIS Defendant. [16] [Doc. No. 6] [17] 18 On July 14, 2022, Plaintiff Chocolate N. commenced this action against Kilolo 19 Kijakazi, Acting Commissioner of Social Security, seeking review of the Commissioner’s 20 final adverse decision. Doc. No. 1. Plaintiff’s attorney of record did not sign the Complaint. 21 See id. On July 14, 2022, plaintiff moved to proceed in forma pauperis. Doc. Nos. 2 and 22 2-1. On July 22, 2022, this Court denied plaintiff’s Motion to Proceed In Forma Pauperis 23 because he did “not provide[] the Court with any information regarding his monthly 24 expenditures, and the Court [was] therefore unable to assess” his ability to pay court costs 25 and also afford the necessities of life. Doc. No. 4 at 2 (citing Escobedo v. Applebees, 787 26 F.3d 1226 , 1234 (9th Cir. 2015)). On August 11, 2022, plaintiff filed a second Motion to 27 Proceed In Forma Pauperis. Doc. No. 6. Plaintiff attached the same supporting declaration [28] 1 to the second Motion as had been attached to the first Motion. Compare Doc. No. 6-1 with 2 Doc. No. 2. 3 All pleadings “must be signed by at least one attorney of record in the attorney’s 4 name,” and the Court “must strike an unsigned paper unless the omission is promptly 5 corrected after being called to the attorney’s or party’s attention.” Fed. R. Civ. P. 11(a) 6 (emphasis added). The mandatory language of Rule 11 obligates the Court to strike the 7 Complaint if the failure to sign is not corrected, but “if the inappropriately signed pleadings 8 are later adopted and signed by the proper party, a court may ignore the initial technical 9 violation.” Cenlin Taiwan, Ltd. v. Centon, Ltd., No. C88-4947 DLJ, 1990 U.S. Dist. LEXIS 10 4558, at *6-7 (N.D. Cal. Mar. 15, 1990) (citing Womble v. Dixon, 585 F. Supp. 728 , 731 11 (E.D. Va. 1983)). Because counsel for plaintiff failed to sign the Complaint as Rule 11 12 requires, the Court orders plaintiff to file a Complaint, signed by counsel of record, within 13 fourteen (14) days of the issuance of this Order. See Doc. No. 1. 14 The Court must also address plaintiff’s second application to proceed in forma 15 pauperis. A court may authorize the commencement of a suit without prepayment of fees 16 if the plaintiff submits an affidavit, including a statement of all his or her assets, showing 17 he or she is unable to pay the filing fee. See 28 U.S.C. § 1915 (a). The statute does not 18 define “what constitutes insufficient assets,” but “‘[o]ne need not be absolutely destitute to 19 obtain [the] benefits of the in forma pauperis statute.’” Escobedo, 787 F.3d at 1234 (9th 20 Cir. 2015) (citation omitted) (alteration in original). However, a plaintiff who seeks to 21 proceed in forma pauperis “must allege poverty ‘with some particularity, definiteness and 22 certainty.’” Id. (citation omitted). 23 Plaintiff’s second application to proceed in forma pauperis is substantively identical 24 to his first Motion. He states he is unemployed, his sole income is $400.00 in monthly 25 public assistance, and he has no assets. Doc. No. 6-1 at 2, 5. Plaintiff failed to declare, 26 however, whether he has any dependents, obligations, or unenumerated assets, indicating 27 only that such things were “n/a.” Id. at 5. Plaintiff has again failed to provide the Court 28 with any specific information regarding his monthly expenditures, or a sufficiently 1 complete statement of his ability to pay, and the Court is therefore unable to assess whether 2 he “cannot pay the court costs and still afford the necessities of life.” See Escobedo, 787 3 F.3d at 1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 4 Plaintiff’s application also fails to comply with Civil Local Rule 3.2, which requires an 5 unemployed applicant to state “the date of the last employment and the amount of wages 6 or salary per month which was received.” See Doc. No. 6-1 at 3. Finally, Plaintiff’s 7 supporting declaration states only that some categories of information are “n/a,” which is 8 a common abbreviation for “not applicable.” See Doc. No. 6-1. This response is not 9 acceptable, because Local Rule 3.2 expressly requires the inclusion of the information 10 plaintiff has elected to omit, which information is needed in order for the Court to rule on 11 plaintiff’s Motion. 12 An applicant for in forma pauperis status should ordinarily be given an opportunity 13 to cure a defective application. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 , 130714 08 (11th Cir. 2004); Hackett v. O’Donnell, No. 18-000254 DKW-KSC, 2018 U.S. Dist. 15 LEXIS 135795 , at *3-4 (D. Haw. Aug. 10, 2018); Hockless v. State Dep’t of Parks & 16 Recreation, 1:07-cv-00601 AWI NEW (TAG), 2007 U.S. Dist. LEXIS 35582 , at *2-3 17 (E.D. Cal. Apr. 26, 2007). Plaintiff has already received one opportunity to correct the 18 insufficiency of his supporting declaration. Doc. No. 4. The Court will provide plaintiff a 19 final opportunity to submit a supporting declaration that sufficiently establishes his 20 inability to pay court fees. 21 Plaintiff is hereby ORDERED TO FILE A SIGNED COMPLAINT THAT 22 COMPLIES WITH RULE 11 within fourteen (14) days of the issuance of this Order. 23 Plaintiff is expressly admonished that failure to file a signed Complaint may lead to the 24 Complaint being stricken, and dismissal of the action. 25 Plaintiff’s Motion to Proceed In Forma Pauperis is DENIED WITHOUT 26 PREJUDICE. If plaintiff elects to file a Complaint that meets the requirements of Rule 11 27 as delineated above, plaintiff may once more move to proceed in forma pauperis. Likewise, [28] 1 || continued failure to file a sufficient supporting declaration may lead to the dismissal of this 2 || action. 3 || IT ISSO ORDERED. 4 ||Dated: August 18, 2022 JE. Le 5 G Wii eo 6 Hori. Karen 8S. Crawford , United States Magistrate Judge