Ukkerd v. Siegel

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

AUDREY JEAN UKKERD, Case No.: 21-CV-253 JLS (AHG) Plaintiff,

ORDER (1) DENYING WITHOUT v. PREJUDICE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED

MICHAEL J. SIEGEL, ESQ.;

IN FORMA PAUPERIS, AND

GIANNI SAM STEPHANO, ESQ.; (2) DISMISSING WITHOUT

CDCR CALIFORNIA STATE PRISON

PREJUDICE COMPLAINT FOR

SACRAMENTO; and CA DEPT. OF

FAILING TO PAY FILING FEE CORRECTIONS AND

REHABILITATION, (ECF Nos. 1, 2)

Defendants.

Presently before the Court are Plaintiff Audrey Jean Ukkerd’s Complaint for Violation of Civil Rights (“Compl.,” ECF No. 1) and Motion for Leave to Proceed in Forma Pauperis (“IFP Mot.,” ECF No. 2). Plaintiff, proceeding pro se, alleges the violation of several of her constitutional rights by two attorneys, the California Department of Corrections and Rehabilitation, and a state prison. See generally Compl. Having considered Plaintiff’s Motion and the supporting affidavit, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion.

All 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if she is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates that paying court costs will result in a plaintiff’s inability to afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id.

Here, Plaintiff appears to have resubmitted the same motion to proceed IFP that she filed in the Supreme Court of California. See generally IFP Mot. Plaintiff’s use of the wrong form is a basis for denying her IFP Motion. See, e.g., Emrit v. Access Rx, No. CV- 15-00936-PHX-DGC, 2015 WL 6689294, at *1 (D. Ariz. Nov. 3, 2015) (“Because Plaintiff has used an improper form requesting IFP status, the Court will deny Plaintiff’s application.”); Smith v. Unknown Party, No. CV2008125PCTMTLJFM, 2020 WL 19 5891741, at *1 (D. Ariz. Oct. 5, 2020) (same). The Court directs Plaintiff to the United States District Court for the Southern District of California’s form IFP motion, available at https://www.casd.uscourts.gov/_assets/pdf/forms/AO239_Application%20to%20Proceed %20Without%20Prepayment.pdf.

Even overlooking this issue, however, Plaintiff’s affidavit tends to show that the payment of court costs would not leave her unable to afford the necessities of life. Plaintiff

In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to her spouse have a combined monthly income of $12,000. See IFP Mot. at 2. There appears to be a typographical error in the amount of cash Plaintiff and her spouse have, which is listed as “18000,000,” but the amount appears to be not insubstantial. Jd. at 3. Plaintiff and her spouse also own a home valued at $400,000. See id. Meanwhile, Plaintiff her spouse’s combined monthly expenses are only $1,559. See id. at 5. Because it appears that Plaintiff and her husband’s monthly income exceeds their expenses by more than $10,000, and that Plaintiff and her husband own substantial assets, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion.

CONCLUSION

Good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff's IFP Motion (ECF No. 2) is DENIED WITHOUT PREJUDICE; 2. Plaintiffs Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure to prepay the filing fee mandated by 28 U.S.C. §1914(a); and }/3. Plaintiff is GRANTED an additional thirty (30) days from the date on which this ]Order is electronically docketed to either (1) pay the entire $402 statutory and administrative filing fee, or (2) file a new IFP Motion, on the proper form, alleging that she unable to pay the requisite fees.

IT IS SO ORDERED.

Dated: February 11, 2021 (een on. Janis L. Sammartino United States District Judge