1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES R. JORDAN and FRANCES Case No.: 19-CV-1451 JLS (RBB)

JORDAN,

12

ORDER (1) DENYING WITHOUT

Plaintiffs, 13 PREJUDICE PLAINTIFFS’ MOTION v. TO PROCEED IN FORMA 14

PAUPERIS, AND (2) DISMISSING

UNITED STATES DEPARTMENT OF

15 WITHOUT PREJUDICE

LABOR; POSTMASTER GENERAL,

COMPLAINT FOR FAILING TO

16 UNITED STATES POSTAL SERVICE,

PAY FILING FEE

and DOES 1–10, 17 Defendants. (ECF No. 2) 18 19 20 Presently before the Court is Plaintiffs Charles R. Jordan and Frances Jordan’s 21 Motion to Proceed in Forma Pauperis (“IFP”) (“Mot.,” ECF No. 2). On August 2, 2019, 22 Plaintiffs, proceeding pro se, filed a Complaint alleging fraud, disability discrimination, 23 retaliation, and intentional infliction of emotional distress against Defendants United States 24 Department of Labor and the Postmaster General of the United States Postal Service. See 25 generally ECF No. 1 (“Compl.”). 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for a writ of habeas corpus, must pay filing and 28 administration fees totaling $400. 28 U.S.C. § 1914(a). A court may, however, in its 1 discretion, allow a plaintiff to proceed without paying these fees if the plaintiff seeks leave 2 to proceed IFP by submitting an affidavit stating the fees impose financial hardship. See 3 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although the 4 statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must 5 allege poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a plaintiff 6 leave to proceed IFP may be proper, for example, when the affidavit demonstrates that 7 paying court costs will result in a plaintiff’s inability to afford the “necessities of life.” Id. 8 The affidavit, however, need not demonstrate that the plaintiff is destitute. Id. 9 In Escobeda, for example, the filing fees constituted forty percent of the plaintiff’s 10 monthly income before factoring in her expenses. Id. at 1235. Taking into account the 11 Plaintiff’s rent and debt payments, the filing fee would have required the entirety of two- 12 months’ worth of her remaining funds, meaning that the plaintiff “would have to forgo 13 eating during those sixty days, to save up to pay the filing fee.” Id. Under those 14 circumstances, the Ninth Circuit determined that paying the filing fee would constitute a 15 significant financial hardship to the plaintiff. Id. Accordingly, the court reversed the 16 magistrate judge’s ruling denying the plaintiff IFP status. Id. at 1236. 17 Here, although mindful of the Ninth Circuit’s admonition that the requisite filing fee 18 “is a lot of money to many millions of Americans,” see id. at 1235, the Court ultimately 19 concludes that Plaintiffs have not met their burden of demonstrating that payment of the 20 filing fee would constitute an undue financial hardship. In Plaintiffs’ affidavit, they 21 indicate their combined gross monthly income is $4,890. Mot. at 2. Accordingly, the $400 22 filing fee constitutes about eight percent of their monthly income. Plaintiffs’ monthly 23 expenses—including their housing, utilities, food, clothing, transportation, and 24 insurance—total $4360.46. Id. at 4–5. Plaintiffs’ monthly income therefore exceeds their 25 monthly expenses by over $500. Further, review of Plaintiffs’ expenses appears to show 26 that some of their monthly expenditures are discretionary. For example, Plaintiffs budget 27 $470 per month for clothing. Id. at 4. Plaintiffs therefore not only have a monthly surplus 28 / / / 1 || exceeding the cost of filing, but they also have monthly discretionary spending that exceeds 2 || the filing fee. 3 Plaintiffs also own considerable assets, including a home worth $440,000 and two 4 ||cars worth approximately $18,000. Jd. at 3. They also have $2,200 in their checking 5 ||accounts. /d. at 2. Plaintiffs do not indicate why they are unable to use these funds to pay 6 filing fee. Because Plaintiffs appear to have sufficient income to afford life’s 7 ||necessities in addition to the filing fee, the Court DENIES WITHOUT PREJUDICE 8 || Plaintiffs’ Motion. 9 CONCLUSION 10 Good cause appearing, IT IS HEREBY ORDERED that: 1] 1. Plaintiffs’ Motion pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is DENIED 12 || WITHOUT PREJUDICE; 13 2. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure 14 prepay the filing fee mandated by 28 U.S.C. $1914(a); and 15 3. Plaintiff is GRANTED an additional thirty (30) days from the date this Order 16 ||is electronically docketed to either (1) pay the entire $400 statutory and administrative 17 || filing fee, or (2) file a new IFP Motion alleging they are unable to pay the requisite fees. 18 IT IS SO ORDERED. 19 20 Dated: September 12, 2019 tt 1 ja Janis L. Sammartino United States District Judge 22 23 24 25 26 27 28