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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 TRACEE McKINNEY, Case No. 19-cv-1485-BAS-MDD 11 Plaintiff, ORDER GRANTING MOTION 12 TO PROCEED IN FORMA PAUPERIS; AND DIRECTING 13 v. U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 14 BANK OF AMERICA, N.A., U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3) 15 Defendant. [ECF No. 2] 16 17 18 Plaintiff Tracee McKinney filed a complaint against Bank of America, N.A. 19 (“BofA”) alleging BofA breached the parties’ mortgage agreement. (ECF No. 1.) 20 Along with her complaint, Plaintiff filed a motion for leave to proceed in forma 21 pauperis. (ECF No. 2.) 22 I. MOTION TO PROCEED IN FORMA PAUPERIS 23 Under

, a litigant who because of indigency is unable to pay 24 the required fees or security to commence a legal action may petition the court to 25 proceed without making such payment. The determination of indigency falls within 26 the district court’s discretion. Cal. Men’s Colony v. Rowland,

(9th 27 Cir. 1991), rev’d on other grounds,

(1993) (holding that “Section 1915 1 whether the affiant has satisfied the statute’s requirement of indigency”). It is well- 2 settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. 3 DuPont de Nemours & Co.,

, 339–40 (1948). To satisfy the 4 requirements of

(a), “an affidavit [of poverty] is sufficient which 5 states that one cannot because of his poverty pay or give security for costs . . . and 6 still be able to provide himself and dependents with the necessities of life.”

at 7 339. At the same time, however, “the same even-handed care must be employed to 8 assure that federal funds are not squandered to underwrite, at public expense . . . the 9 remonstrances of a suitor who is financially able, in whole or in material part, to pull 10 his own oar.” Temple v. Ellerthorpe,

(D.R.I. 1984). 11 District courts, therefore, tend to reject IFP applications where the applicant 12 can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., 13 Stehouwer v. Hennessey,

(N.D. Cal. 1994), vacated in part on 14 other grounds, Olivares v. Marshall,

(9th Cir. 1995). Moreover, “in 15 forma pauperis status may be acquired and lost during the course of litigation.” 16 Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791,

, at *2 17 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer,

). Finally, the facts 18 as to the affiant’s poverty must be stated “with some particularity, definiteness, and 19 certainty.” United States v. McQuade,

(9th Cir. 1981). 20 Here, Plaintiff claims she receives $1,799 per month in disability. She is not 21 employed and has only $100 in her checking account. However, she owns a home 22 valued at $320,000 (the subject of the alleged foreclosure action in this case) and a 23 car valued at $28,000. Plaintiff states her expenses are $2,898 per month. Although 24 the Court finds it implausible that Plaintiff can afford a lifestyle where her expenses 25 greatly exceed her income, the Court finds it is unlikely Plaintiff would be able to 26 afford the costs of litigation, given she is unemployed and living off of disability and 27 food stamps. (ECF No. 2, at 5.) Therefore Plaintiff meets the requirements for IFP 1 forma pauperis. However, if it appears at any time in the future that Plaintiff’s 2 financial picture has improved for any reason, the Court will direct Plaintiff to pay 3 the filing fee to the Clerk of the Court. This includes any recovery Plaintiff may 4 realize from this suit or others and any assistance Plaintiff may receive from family 5 or the government. 6 II. SCREENING 7 The Court must screen every civil action brought pursuant to 28 U.S.C. 8 § 1915(a) and dismiss any case it finds “frivolous or malicious,” “fails to state a claim 9 on which relief may be granted,” or “seeks monetary relief against a defendant who 10 is immune from relief.”

(e)(2)(B); see also Calhoun v. Stahl, 254

, 845 (9th Cir. 2001) (“[T]he provisions of

(e)(2)(B) are 12 not limited to prisoners.”); Lopez v. Smith,

, 1126–27 (9th Cir. 2000) 13 (en banc) (noting that

(e) “not only permits but requires a district 14 court to dismiss an in forma pauperis complaint that fails to state a claim”). 15 As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. 16 § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP 17 provisions of § 1915 make and rule on its own motion to dismiss before directing the 18 Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See 19 Fed. R. Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH 20 (DHB),

, at *1 (S.D. Cal. Jan. 9, 2013). 21 All complaints must contain a “short and plain statement of the claim showing 22 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual 23 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 25

(2009) (citing Bell Atl. Corp. v. Twombly,

, 555 26 (2007)). “[D]etermining whether a complaint states a plausible claim is context- 27 specific, requiring the reviewing court to draw on its experience and common sense.”

F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 2 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 3 12(b)(6).”). 4 Here Plaintiff states she entered into a contract (a deed of trust) with BofA. 5 She states she performed under the contract by making payments on the mortgage, 6 but BofA breached the contract by failing to apply the payments as it should. 7 Assuming all allegations in the complaint to be true, the Court finds Plaintiff has 8 sufficiently stated a breach of contract claim. See Morris v. Green Tree Servicing, 9 LLC, No. 2:14-cv-1998-GMN-CWH,

, at *4 (D. Nev. July 8, 10 2015) (finding the plaintiff alleged a breach of contract claim by alleging the 11 defendant failed to apply the mortgage payments in the contractual order of 12 priority).1 The Court notes that although the complaint survives screening, this does 13 not preclude Defendant from bringing a motion to dismiss. 14 The Court: 15 (1) DIRECTS the Clerk to issue a summons as to Plaintiff’s complaint (ECF 16 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 17 Defendant, and, in addition, the Clerk will provide Plaintiff with a certified copy of 18 this Order, a certified copy of her complaint and the summons so that she may serve 19 Defendant. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 20 285 as completely and accurately as possible, include an address where Defendant 21 may be found, and return it to the United States Marshal according to the instructions 22 the Clerk provides in the letter accompanying her IFP package. 23 (2) ORDERS the U.S. Marshal to serve a copy of the complaint and summons 24 upon Defendant as directed by Plaintiff on the USM Form 285 provided to her. All 25 costs of that service will be advanced by the United States. See

(d); 26

27 1 Plaintiff also sufficiently alleges the Court has diversity jurisdiction over this case because she 1 || Fed. R. Civ. P. 4(c)(3); 2 (3) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 3 ||serve upon Defendant, or, if appearance has been entered by counsel, upon 4 ||Defendant’s counsel, a copy of every further pleading, motion, or other document 5 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff 6 ||must include with every original document she seeks to file with the Clerk of the 7 ||Court, a certificate stating the manner in which a true and correct copy of that 8 ||document has been was served on Defendant or its counsel, and the date of that 9 service. See S.D. Cal. Civ. L. R. 5.2. Any document received by the Court which 10 |/has not been properly filed with the Clerk, or which fails to include a Certificate of 11 ||Service upon Defendant, may be disregarded. 12 IT IS SO ORDERED. 13 || DATED: August 15, 2019 /) ) sd ebay sale 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28