Shelton v. United States Border Patrol

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Case No.: 21-CV-1614-CAB-LL JEFF S. SHELTON,

ORDER DENYING MOTION TO

Plaintiff,

PROCEED IN FORMA PAUPERIS v.

UNITED STATES CUSTOMS AND [Doc. No. 2]

BORDER PATROL,

Defendant.

This matter comes before the court on Plaintiff Jeff Shelton’s motion to proceed in forma pauperis (“IFP”). [Doc. No. 2.] Generally, all parties instituting a civil action in the district court must pay a filing fee. See 28 U.S.C. § 1914(a); CivLR 4.5(a). However, the Court may authorize a party to proceed without paying the fee if that party submits an affidavit demonstrating an inability to pay. 28 U.S.C. § 1915(a). “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “Nonetheless, a plaintiff seeking IFP status must allege poverty with some particularity, definiteness and certainty.” Id. (internal quotation marks omitted).

According to his affidavit, Plaintiff is employed by the United States Border Patrol, although he was suspended for five days on May 9 – 13, 2021, and for another fourteen days on August 26 — September 8, 2021. [Doc. No. 1-2 at 1.] Plaintiff states that his gross pay is $0 for a two-week period, presumably referring to the most recent fourteen-day period during which he was suspended, but does not state what his normal gross pay is while employed. [Doc. No. 2 at 1.] Plaintiff’s stated expenses total $6,780 per month. □□□□ 2.] Plaintiff also owns two homes worth $850,000.00 each and has $10,000.00 in cash. The owner of such valuable property, who is employed full-time and has $10,000.00 in cash in his possession, cannot be said to be living in poverty. Based on the information provided, the court is not persuaded that Plaintiff lacks the ability to pay the filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234.

For all the foregoing reasons, Plaintiff's motion to proceed IFP on appeal is }DENIED. Plaintiff shall pay the filing fee no later than September 30, 2021. If Plaintiff fails to pay the filing fee by the deadline, his case shall be dismissed and the Clerk of Court close the case.

It is SO ORDERED.

Dated: September 16, 2021 € Z

Hon. Cathy Ann Bencivengo United States District Judge