1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL SHULTERS, Case No.: 23-CV-1291 JLS (WVG)

11 Plaintiff, ORDER (1) DENYING MOTION TO 12 v. PROCEED IN FORMA PAUPERIS; (2) DENYING REQUEST FOR 13 SOCIAL SECURITY ADD. OFFICE, APPOINTMENT OF COUNSEL; 14 Defendant. AND (3) DISMISSING WITHOUT PREJUDICE COMPLAINT FOR 15 FAILURE TO PAY FILING FEES 16 REQUIRED BY

(a)

17 (ECF Nos. 1, 2, 3) 18

19 Presently before the Court are Plaintiff Michael Shulter’s Complaint (“Compl.,” 20 ECF No. 1), Motion to Proceed in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2), and 21 Request for Appointment of Counsel (“Req. for Counsel,” ECF No. 3). For the reasons set 22 forth below, the Court DENIES Plaintiff’s IFP Motion and Request for Counsel 23 WITHOUT PREJUDICE and DISMISSES WITHOUT PREJUDICE Plaintiff’s 24 Complaint for failure to pay the filing fees required by

(a). 25 MOTION TO PROCEED IN FORMA PAUPERIS 26 All parties instituting a civil action, suit, or proceeding in a district court of the 27 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 1 if the party is granted leave to proceed IFP pursuant to

(a)(1). Section 2 1915(a)(1) provides: 3 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 4 proceeding . . . without prepayment of fees or security therefor, 5 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 6 such fees or give security therefor. 7

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

(9th Cir. 1991) (“Section 1915 typically 11 requires the reviewing court to exercise its sound discretion in determining whether the 12 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 13 by

(1993). “An affidavit in support of an IFP application is sufficient where 14 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 15 Escobedo v. Applebees,

(9th Cir. 2015) (citing Adkins v. E.I. Du Pont 16 de Nemours & Co.,

(1948)). “One need not be absolutely destitute to 17 obtain benefits of the [IFP] statute.” Jefferson v. United States,

(9th Cir. 18 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 19 particularity, definiteness[,] and certainty.’” Escobedo,

. 20 Plaintiff has not paid the $402 filing fee required to maintain a civil action in this 21 District and instead moves to proceed IFP. Plaintiff submits a form affidavit of assets to 22 support his IFP Motion. See generally IFP Mot. Plaintiff attests that he earns no income. 23

at 1–2. He claims to have no money in bank accounts. Id. at 2. He states that he has 24 monthly expenses of $200 for food and $100 for clothing. Id. at 4. However, Plaintiff fails 25 to answer many questions in the IFP Motion. He fails, for example, to provide his 26 employment history, see id. at 2, or answer whether he has any cash and how much, see id. 27 He does not indicate whether any persons are dependent upon him. See id. at 3. And while 28 he indicates that he “expect[s] a[] major change[] to [his] monthly income or expenses or 1 in [his] assets or liabilities during the next 12 months,” he fails to “describe on an attached 2 sheet” the expected change. Id. at 5. The instructions on the first page of the IFP Motion 3 are clear, however, that the applicant should “[c]omplete all questions in this application 4 and then sign it. Do not leave any blanks: if the answer to a question is ‘0,’ ‘none,’ or ‘not 5 applicable (N/A),’ write that response.” Id. at 1. 6 In light of Plaintiff’s incomplete attestations, the Court cannot glean whether 7 Plaintiff is able to pay the filing fee and “still afford the necessities of life.” Escobedo, 787 8 F.3d at 1234. Thus, the Court finds that Plaintiff does not allege poverty with particularity, 9 definiteness, or certainty; therefore, he is not entitled to proceed IFP at this time. 10 Accordingly, the Court DENIES Plaintiff’s IFP Motion. Said denial, however, is 11 WITHOUT PREJUDICE to Plaintiff refiling an IFP motion that cures the above-noted 12 deficiencies. 13 REQUEST FOR APPOINTMENT OF COUNSEL 14 Plaintiff also requests the Court appoint an attorney to represent him. See generally 15 Req. for Counsel. The Constitution provides no right to appointment of counsel in a civil 16 case unless an indigent litigant may lose his physical liberty if he loses the litigation. 17 Lassiter v. Dep’t of Soc. Servs.,

(1981). Nonetheless, under 28 U.S.C. 18 § 1915(e)(1), district courts have the discretion to appoint counsel for indigent persons. 19 This discretion, however, may be exercised only under “exceptional circumstances.” 20 Terrell v. Brewer,

(9th Cir. 1991). “A finding of exceptional 21 circumstances requires an evaluation of both the ‘likelihood of success on the merits and 22 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 23 legal issues involved.’ Neither of these issues is dispositive and both must be viewed 24 together before reaching a decision.”

(quoting Wilborn v. Escalderon,

, 25 1331 (9th Cir. 1986)). Further, a court is only empowered to exercise this discretion to 26 appoint counsel if the litigant is “unable to afford counsel.”

(e)(1) (“The 27 court may request an attorney to represent any person unable to afford counsel.” (emphasis 28 added)). 1 The Court finds Plaintiff has not satisfied the standards for appointment of counsel 2 under

(e)(1). First and most importantly, the Court has determined that 3 Plaintiff has failed to establish, at this juncture, that he is unable to afford counsel, given 4 the incomplete financial information disclosed in his IFP Motion. Second, even had 5 Plaintiff satisfied this threshold requirement, the Court finds that Plaintiff has not shown 6 that exceptional circumstances merit the appointment of counsel. Plaintiff’s Complaint has 7 not yet been served or answered; accordingly, the likelihood of Plaintiff’s success on the 8 merits in this case is unclear. Further, Plaintiff’s filing of a Complaint, an IFP Motion, and 9 a Request for Counsel indicates that Plaintiff has at least a basic understanding of and 10 ability to litigate this action. Finally, Plaintiff does not indicate whether he made “diligent 11 efforts to obtain legal counsel but [was] unsuccessful because of [his] poverty,” Req. for 12 Counsel at 1, and he does not list any attorneys he has approached regarding representation, 13 see

. Thus, the Court finds that neither the interests of justice nor any exceptional 14 circumstances warrant appointment of counsel at this time and DENIES Plaintiff’s Request 15 for Counsel. However, this denial is WITHOUT PREJUDICE should Plaintiff later be 16 able to make the requisite showing of his inability to afford counsel and exceptional 17 circumstances. 18 CONCLUSION 19 In light of the foregoing and good cause appearing, the Court: 20 1. DENIES WITHOUT PREJUDICE Plaintiff’s Motion to Proceed IFP (ECF No. 21 2); 22 2. DENIES WITHOUT PREJUDICE Plaintiff’s Request for Appointment of 23 Counsel (ECF No. 3); 24 3. DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint (ECF No. 1) for 25 failure to prepay the filing fee mandated by

(a); and 26 4. GRANTS Plaintiff thirty (30) days from the date of this Order to either: (1) pay the 27 entire $402 filing fee required to maintain an action is this District; or (2) file a 28 renewed motion to proceed IFP that cures the deficiencies identified by the Court 1 and demonstrates Plaintiffs poverty with some particularity.! Should Plaintiff fail 2 to either pay the filing fee or file a new IFP motion adequately evidencing 3 Plaintiff’s poverty, the dismissal of Plaintiff’s Complaint will be converted into a 4 dismissal of this civil action without prejudice and without further Order or action 5 from this Court. 6 IT ISSO ORDERED. 7 Dated: July 20, 2023 Lt 8 ras Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ||! The Court reminds Plaintiff that, should he refile an IFP motion that sufficiently assures the Court that he is entitled to IFP status, his Complaint will undergo mandatory pre-answer screening pursuant to 28

(e)(2)(B). Under section 1915(e)(2)(B), the Court must sua sponte dismiss the Complaint, 2g || or any portion of it, that is frivolous, is malicious, fails to state a claim, or seeks damages from immune defendants.