1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LUCIE WIGGINS, Case No.: 21-CV-2079 JLS (MDD)

11 Plaintiff, ORDER (1) DENYING MOTION TO 12 v. PROCEED IN FORMA PAUPERIS; (2) DENYING REQUEST FOR 13 OFFICE OF WORKERS APPOINTMENT OF COUNSEL; COMPENSATION PROGRAMS; 14 AND (3) GRANTING MOTION TO SECRETARY OF FEDERAL AMEND COMPLAINT 15 EMPLOYEE COMPENSATION ACT;

and EMPLOYEES, 16 (ECF Nos. 2, 3, 8) Defendants. 17 18

19 Presently before the Court are Plaintiff Lucie Wiggins’s Motion to Proceed in Forma 20 Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2), Request for Appointment of Counsel (“Req. 21 for Counsel,” ECF No. 3), and Amended Complaint, which the Court, in its discretion, 22 construes as a motion to amend her Complaint (“Mot. to Amend,” ECF No. 8). For the 23 reasons set forth below, the Court DENIES Plaintiff’s IFP Motion and Request for Counsel 24 WITHOUT PREJUDICE and GRANTS Plaintiff’s Motion to Amend. 25 MOTION TO PROCEED IN FORMA PAUPERIS 26 I. Legal Standard 27 All parties instituting a civil action, suit, or proceeding in a district court of the 28 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28

(a). An action may proceed despite a party’s failure to pay the filing fee only 2 if the party is granted leave to proceed IFP pursuant to

(a)(1). Section 3 1915(a)(1) provides: 4 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 5 proceeding . . . without prepayment of fees or security therefor, 6 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 7 such fees or give security therefor. 8

9 As section 1915(a)(1) does not itself define what constitutes insufficient assets to warrant 10 IFP status, the determination of indigency falls within the district court’s discretion. See 11 Cal. Men’s Colony v. Rowland,

(9th Cir. 1991) (“Section 1915 typically 12 requires the reviewing court to exercise its sound discretion in determining whether the 13 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 14 by

(1993). “An affidavit in support of an IFP application is sufficient where 15 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 16 Escobedo v. Applebees,

(9th Cir. 2015) (citing Adkins v. E.I. Du Pont 17 de Nemours & Co.,

(1948)). “One need not be absolutely destitute to 18 obtain benefits of the [IFP] statute.” Jefferson v. United States,

(9th Cir. 19 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 20 particularity, definiteness[,] and certainty.’” Escobedo,

. 21 II. Analysis 22 Plaintiff has not paid the $402 filing fee required to maintain a civil action in this 23 District and instead moves to proceed IFP. Plaintiff submits a form affidavit of assets to 24 support her IFP Motion. See generally IFP Mot. Plaintiff also submits an affidavit in 25 support of her Request for Counsel. See Req. for Counsel at 4–6. 26 In her Application to Proceed in District Court Without Prepaying Fees or Costs 27 (“IFP Affidavit,” ECF No. 2), dated December 13, 2021, Plaintiff attests that she earns 28 $724 per month in retirement and $694 per month in disability for total monthly income of 1 approximately $1,460.

at 1–2. She is unemployed. Id. at 2. She claims monthly 2 expenses of $40 for utilities, $100 for home maintenance, $95 for food, $60 for clothing, 3 and $150 for medical and dental expenses, resulting in total monthly expenses of 4 approximately $445. Id. at 4. She does not expect any changes to her monthly income or 5 expenses in the next year. Id. at 5. 6 Plaintiff, however, fails to answer many questions in the IFP Affidavit. Of note, 7 when directed to list all her assets—such as a home, other real estate, or motor vehicles— 8 and their values, Plaintiff left the relevant section completely blank. Id. at 3. Likewise, 9 Plaintiff failed to complete the sections requesting information about her cash and bank 10 accounts as well as any debts she owes. Id. at 2–3. The IFP Affidavit is clear, however, 11 that the applicant should “[c]omplete all questions in this application and then sign it. Do 12 not leave any blanks: if the answer to a question is “0,” “none,” or “not applicable (N/A),” 13 write that response.” Id. at 1. 14 In her Affidavit in Support of Request for Counsel (“Counsel Affidavit,” ECF No. 3 15 at 4–6), also dated December 13, 2021, Plaintiff attests that she is currently unemployed 16 but has received approximately $698 from “Workers Comp” and $742 from “SSDI” “in 17 the past twelve months.” Id. at 4. She claims to have $1,000 in checking and/or savings 18 accounts. Id. at 5. She also claims to owe $6,000 in debts. Id. at 6. Finally, when asked 19 to list her monthly living expenses, Plaintiff indicates that she pays approximately $560 in 20 rent, $60 for “Lights,” and $435 for her “Car Note.” Id. 21 In light of the foregoing, the Court finds that Plaintiff does not allege poverty with 22 particularity, definiteness, or certainty; therefore, she is not entitled to proceed IFP. First, 23 Plaintiff’s IFP Affidavit is incomplete; Plaintiff did not provide much of the requested 24 information. Plaintiff’s incomplete IFP Affidavit and unknown financial status alone 25 warrant denial of her request to proceed IFP, for section 1915(a)(1) requires that Plaintiff 26 attest to “all assets [she] possess.”

(a)(1) (emphasis added). 27 Second, the financial information to which Plaintiff does attest is inconsistent 28 between the two affidavits. For example, in the IFP Affidavit, Plaintiff attests that she has 1 average monthly income of roughly $1,460, comprising $724 from retirement and $694 2 from disability, IFP Affidavit at 2; and average monthly expenses of $445,

. In 3 contrast, in the contemporaneously dated and filed Counsel Affidavit, Plaintiff attests that 4 she received, in a twelve-month period, $698 from “Workers Comp” and $742 from 5 “SSDI,” Counsel Affidavit at 4; and that her monthly expenses are roughly $1,055, 6 including payments for rent and a car that are not included in the IFP Affidavit,

. 7 Plaintiff does not account for these discrepancies in her day-to-day expenses and income. 8 In light of Plaintiff’s inconsistent and incomplete attestations, the Court cannot glean 9 whether Plaintiff is able to pay the filing fee and “still afford the necessities of life.” 10 Escobedo,

. 11 III. Conclusion 12 Plaintiff’s inconsistent and incomplete attestations do not demonstrate with 13 “particularity, definiteness, or certainty” that Plaintiff lacks the financial resources to pay 14 the $402 filing fee. Accordingly, the Court DENIES Plaintiff’s IFP Motion. This denial, 15 however, is WITHOUT PREJUDICE to Plaintiff refiling an IFP motion that accounts for 16 the above-noted discrepancies and demonstrates that Plaintiff is not abusing the IFP 17 process, which could result in dismissal of this action or other sanctions.1 See Newsome v. 18 Loterzstain, No. 2:19-cv-0307-JAM-EFB P,

, at *3 (E.D. Cal. Aug. 5, 19 2020) (“[C]ourts routinely dismiss with prejudice cases upon finding that the plaintiff has 20 intentionally withheld information that may have disqualified plaintiff from obtaining IFP 21 status or has otherwise manipulated his finances to make it appear that a plaintiff is poorer 22 than he actually is[.]”); Tuck v. Capitol One Bank, Case No.: 3:17-cv-01555-BEN-AGS, 23

, at *3 (S.D. Cal. Dec. 20, 2017) (“[E]ven if Plaintiff’s Amended IFP 24 Application, viewed in isolation, might otherwise justify allowing him to proceed IFP, IFP 25 ‘status is a privilege which may be denied when abused.’” (quoting Toodle v. Jones, 02:09- 26 27 28 1 Not only did Plaintiff sign the IFP Affidavit “under penalty of perjury,” but with an “understand[ing] 1 CV-0944,

, at *1 (W.D. Pa. July 23, 2009))). The Court reminds 2 Plaintiff that she signed the IFP and Counsel Affidavits under penalty of perjury that they 3 are true and correct (IFP Affidavit at 1; Counsel Affidavit at 6) and will likewise sign any 4 renewed IFP motion under penalty of perjury. See Tuck,

, at *3 5 (“Plaintiff is further remined that an IFP application is made under penalty of perjury, and 6 any false statements may result in a dismissal of claims . . . .”). 7 REQUEST FOR APPOINTMENT OF COUNSEL 8 Plaintiff also requests the Court appoint an attorney to represent her because “[she] 9 need[s] assistance.” Req. for Counsel at 3. 10 The Constitution provides no right to appointment of counsel in a civil case unless 11 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. 12 of Soc. Servs.,

(1981). Nonetheless, under

(e)(1), district 13 courts have the discretion to appoint counsel for indigent persons. This discretion, 14 however, may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 15

(9th Cir. 1991). “A finding of exceptional circumstances requires an 16 evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to 17 articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither 18 of these issues is dispositive and both must be viewed together before reaching a decision.” 19

(quoting Wilborn v. Escalderon,

(9th Cir. 1986)). 20 The Court finds Plaintiff has not satisfied the standards for appointment of counsel 21 under

(e)(1). First, Plaintiff’s Complaint has not yet been served or 22 answered. The likelihood of Plaintiff’s success on the merits in this case is therefore not 23 yet clear at the early stage of the litigation. Second, Plaintiff seems to have successfully 24 navigated the court system thus far, filing a detailed Complaint and the instant IFP Motion 25 and Request for Counsel. This indicates that Plaintiff at least has a basic understanding of 26 and ability to litigate this action. Finally, although Plaintiff attests she made “diligent 27 efforts to obtain counsel,” Req. for Counsel at 2, she does not list any attorneys she has 28 approached regarding representation, see

Thus, the Court finds that neither the interests 1 of justice nor any exceptional circumstances warrant appointment of counsel at this time 2 and DENIES Plaintiff’s Request for Counsel. However, this denial is WITHOUT 3 PREJUDICE should Plaintiff later be able to make the requisite showing of exceptional 4 circumstances. 5 MOTION TO AMEND COMPLAINT 6 Finally, Plaintiff has filed a document purporting to be an Amended Complaint that 7 indicates “[she] would like to amend” her complaint to assert additional claims and seek 8 additional relief. See ECF No. 8. Under this District’s Civil Local Rules, however, 9 “[e]very pleading to which an amendment is permitted as a matter of right or has been 10 allowed by court order, must be complete in itself without reference to the superseded 11 pleading.” S.D. Cal. CivLR 15.1(a). Plaintiff’s “Amended Complaint” is not “complete 12 in itself.” Accordingly, the Court, in its discretion, construes Plaintiff’s filing as a motion 13 seeking the Court’s leave to file an amended complaint. 14 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend her complaint 15 once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). “In all 16 other cases, a party may amend its pleading only with the opposing party’s written consent 17 or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 18 Civ. P. 15(a)(2). Courts generally grant leave to amend absent a showing of “undue delay, 19 bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 20 by amendments previously allowed, undue prejudice to the opposing party by virtue of 21 allowance of the amendment, [or] futility of amendment.” Foman v. Davis,

, 22 182 (1962). “Rule 15(a) ‘is to be applied with extreme liberality,’ and whether to permit 23 amendment is a decision ‘entrusted to the sound discretion of the trial court.’” EFG Bank 24 AG, Cayman Branch v. Transam. Life Ins. Co., No. 216CV08104CASGJSX,

5784739, at *3 (C.D. Cal. Nov. 4, 2019) (quoting Morongo Band of Mission Indians v. 26 Rose,

(9th Cir. 1990); Jordan v. Cty. of Los Angeles,

, 27 1324 (9th Cir. 1982)). 28 / / / 1 Given the early stage of these proceedings and the fact that Plaintiff has yet to serve 2 any defendant in this action, the Court finds that the liberal policy in favor of amendment 3 merits the granting of Plaintiff’s request. 4 CONCLUSION 5 Good cause appearing, the Court: 6 1. DENIES WITHOUT PREJUDICE Plaintiff Motion to Proceed IFP (ECF No. 2). 7 No later than thirty (30) days from the date of this Order, Plaintiff shall either: (1) 8 pay the $402 filing fee required to maintain an action is this District; or (2) file a 9 renewed motion to proceed IFP that accounts for the discrepancies identified by the 10 Court and demonstrates that Plaintiff is not abusing the IFP process.2 Plaintiff is 11 hereby on notice that if she fails to pay the $402 filing fee or file a renewed IFP 12 motion within thirty (30) days from the date of this Order, the Court will dismiss 13 this action without prejudice; 14 2. DENIES WITHOUT PREJUDICE Plaintiff’s Request for Appointment of 15 Counsel (ECF No. 3). Should circumstances change, Plaintiff may be permitted to 16 file a renewed motion seeking appointment of counsel; and 17 3. GRANTS Plaintiff’s Motion to Amend (ECF No. 8). The Court GRANTS Plaintiff 18 thirty (30) days’ leave from the date of this Order in which to file an amended 19 complaint that is complete in itself, without reference to Plaintiff’s original 20 Complaint (ECF No. 1). Should Plaintiff fail to file an amended complaint within 21 thirty (30) days of the date of this Order, the Court will enter a final order 22 dismissing this civil action based on Plaintiff’s failure to prosecute in compliance 23 with a court order requiring amendment. See Lira v. Herrera,

, 1169 24 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 25 26 2 The Court reminds Plaintiff that, should she refile an IFP motion that sufficiently assures the Court that she is entitled to IFP status and is not abusing the IFP process, her Complaint will undergo mandatory pre- 27 answer screening pursuant to

(e)(2)(B). Under section 1915(e)(2)(B), the Court must 28 sua sponte dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, 1 complaint, a district court may convert the dismissal of the complaint into dismissal 2 of the entire action.”’). 3 IT IS SO ORDERED. 4 Dated: February 15, 2022 tt 5 pen Janis L. Sammartino United States District Judge

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