denying prisoner’s IFP motion and denying the motion for TRO as moot
How later courts described this case
- denying prisoner’s IFP motion and denying the motion for TRO as moot
- an adequate affidavit should state 3 supporting facts “with some particularity, definiteness and certainty”
- “[§] 1915 typically requires the reviewing court to exercise its sound discretion 19 in determining whether the affiant has satisfied the statute’s requirement of indigency.”
- noting that courts should not grant IFP 10 to an applicant who is “financially able, in whole or in material part, to pull his own oar”
Written by the judges who cited it.
The opinion
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6 UNITED STATES DISTRICT COURT
7 SOUTHERN DISTRICT OF CALIFORNIA
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9 AMAN ABERA, Case No.: 3:25-cv-01437-RBM-DEB
10 Plaintiff,
ORDER:
11 v. (1) DENYING PLAINTIFF’S IFP
APPLICATION WITH LEAVE TO
12 SAN DIEGO PACIFICVU LLC, et al.,
FILE A RENEWED APPLICATION
13 Defendants. [Doc. 2]
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(2) DISMISSSING CIVIL ACTION
15 WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEES
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17 (3) DENYING PLAINTIFF’S EX
PARTE APPLICATION FOR
18
TEMPORARY RESTRAINING
19 ORDER AS MOOT [Doc. 3]
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21 On June 5, 2025, Plaintiff Aman Abera (“Plaintiff”) filed a Complaint against
22 Defendants San Diego Pacificvu LLC, Greg Hinchy, J. William Hinchy, Tirey Kimball,
23 St. John LLP, Charles Gregory Billinger, Nicole Marie Rivera, Peter F. Murray (in his
24 individual and official capacity as a judicial officer), Blaine K. Bowman, the San Diego
25 County Sheriff’s Department, and Does 1 through 50 (“Complaint”). (Doc. 1.) Along with
26 his Complaint, Plaintiff filed an Application to Proceed In Forma Pauperis (“IFP
27 Application”). (Doc. 2.) Plaintiff also filed an Emergency Ex Parte Application for
28 Temporary Restraining Order and Order to Show Cause (“TRO Application”). (Doc. 3.)
1 The next day, Plaintiff filed an Emergency Notice of Imminent Harm and Request for
2 Immediate Ruling on Pending TRO Application (“Emergency Motion”) (Doc. 4) and a
3 “Notice of Supplemental Authority and Renewed Request for Emergency Relief” (Doc. 5).
4 For the reasons discussed below, the Court (1) DENIES Plaintiff’s IFP Application
5 with leave to file a renewed application; (2) DISMISSES this action without prejudice;
6 and (3) DENIES Plaintiff’s TRO Application without prejudice as moot.
7 I. IFP APPLICATION
8 All parties instituting any civil action, suit, or proceeding in a District Court of the
9 United States, except an application for writ of habeas corpus, must pay a filing fee of
10 $405.1 See 28 U.S.C. § 1914(a). A court may authorize the commencement of a suit
11 without prepayment of the filing fee if the plaintiff submits a signed affidavit “that includes
12 a statement of all assets[,] which shows [an] inability to pay initial fees or give security.”
13 S.D. Cal. Civ. R. 3.2(a). The facts of an affidavit of poverty must be stated “with some
14 particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234
15 (9th Cir. 2015) (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)).
16 The determination of indigency falls within the district court’s discretion. Cal. Men’s
17 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S.
18 194 (1993) (“[§] 1915 typically requires the reviewing court to exercise its sound discretion
19 in determining whether the affiant has satisfied the statute’s requirement of indigency.”).
20 It is well-settled that a party need not be completely destitute to proceed IFP, but he
21 must adequately prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
22 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “[a]n affidavit in
23 support of an IFP [motion] is sufficient where it alleges that the affiant cannot pay the court
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1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee.
27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply
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1 costs and still afford the necessities of life.” Escobedo, 787 F.3d at 1234 (citing Adkins,
2 335 U.S. at 339); see also McQuade, 647 F.2d at 940 (an adequate affidavit should state
3 supporting facts “with some particularity, definiteness and certainty”). No exact formula
4 is “set forth by statute, regulation, or case law to determine when someone is poor enough
5 to earn IFP status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP
6 requests on a case-by-case basis. See id. at 1235–36 (declining to implement a general
7 benchmark of “twenty percent of monthly household income”); see also Cal. Men’s
8 Colony, 939 F.2d at 858 (requiring that district courts evaluate indigency based upon
9 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506
10 U.S. 194 (1993) (citation omitted).
11 In his IFP Application, Plaintiff declares he is experiencing financial hardship.
12 (Doc. 2 at 5–6.) Plaintiff lists $10,000 as his monthly income from employment and $2,970
13 as his monthly expenses. (Id. at 1.) Specifically, Plaintiff declares that he spends $2,100
14 per month on his rent or home-mortgage payment, $230 per month on utilities, $450 per
15 month on food, and $40 per month on laundry and dry-cleaning. (Id. at 4.) Plaintiff is not
16 owed any money and does not have any dependents who rely on him for financial support.
17 (Id. at 3.) Plaintiff has $300 in a checking account with USAA Banking and does not
18 anticipate any changes to his income or expenses in the next twelve months. (Id. at 2, 5.)
19 Moreover, Plaintiff declares that he worked for UBER and Lyft from November
20 2023 to January 2, 2025, where his gross monthly pay was up to $7,500 and $1,000
21 respectively.2 (Id. at 2.) Based on his listed income, however, Plaintiff appears to have
22 sufficient funds to assist in paying the $405 fee. In assessing whether a certain income
23 level meets the poverty threshold under § 1915(a)(1), one of the sources courts may look
24 to is the federal poverty guidelines developed each year by the Department of Health and
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27 2 The Court notes that Plaintiff listed “$7,50” as his gross monthly pay from his
employment at UBER. (See Doc. 2 at 2.) Given that Plaintiff declares his gross monthly
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1 Human Services. See, e.g., Kristine E. v. O’Malley, No. 24-CV-1182-GPC (MMP), 2024
2 WL 4442013, at *1 (S.D. Cal. Sept. 9, 2024). Plaintiff does not claim to have a spouse or
3 any dependent who rely on him for support. (Doc. 2 at 1–3.) Based on his affidavit of
4 assets, Plaintiff has an annual household gross income of $120,000 which is much higher
5 than the 2025 federal poverty guideline for a household of one person ($15,650). See 2025
6 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited June 6, 2025).
7 Even considering monthly expenses, Plaintiff’s gross monthly income still
8 significantly exceeds his combined expenses. (Doc. 2 at 1, 4–5.) See Temple v.
9 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984) (noting that courts should not grant IFP
10 to an applicant who is “financially able, in whole or in material part, to pull his own oar”);
11 see also Alvarez v. Berryhill, No. 18-cv-2133 W (BGS), 2018 WL 6265021, at *1 (S.D.
12 Cal. Oct. 1, 2018) (noting that courts often reject IFP applications when applicants “can
13 pay the filing fee with acceptable sacrifice to other expenses”). The Court therefore
14 concludes that Plaintiff has not alleged poverty “with some particularity, definiteness, and
15 certainty.” See Escobedo, 787 F.3d at 1234. Accordingly, Plaintiff’s IFP Application is
16 DENIED, and this action is DISMISSED without prejudice. If Plaintiff wishes to proceed
17 IFP, he may file a renewed IFP application that provides clear and legible answers and
18 sufficiently demonstrates indigency.3
19 II. TRO APPLICATION
20 In the TRO Application, Plaintiff requests this Court to “halt enforcement of a void
21 Writ of Possession.” (Doc. 3 at 2.) However, as Plaintiff’s Complaint has been dismissed,
22 there is no operative complaint on which to base his TRO Application. See Jones v. Fed.
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25 3 The Court notes it is highly unlikely the Complaint, as alleged, would survive the
mandatory screening pursuant to § 1915(e). Specifically, the Court doubts that it has
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subject matter jurisdiction over this matter pursuant to the Rooker-Feldman doctrine which
27 states that federal courts lack jurisdiction to review state court rulings. See D.C. Court of
Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
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| || Corr. Ctr. Med. Dep’t, No. 20-CV-1385 JLS (BLM), 2020 WL 6942519, at *4 (S.D. Cal.
2 || Nov. 25, 2020) (denying prisoner’s IFP motion and denying the motion for TRO as moot);
3 || Olajide v. Brown, Case No. 18-cv-03991-CRB, 2018 WL 3328227, at *3 (N.D. Cal. July
4 2018) (dismissing the complaint and thereby denying the TRO motion as moot); Barnes
5 || v. United Council of Hum. Servs., Case No. C 19-2848 SBA, 2019 WL 2270374, at *3
6 ||(N.D. Cal. May 28, 2019) (dismissing the complaint, denying the IFP application, and
7 || denying the TRO motion as moot); see also Brodzki v. United States, No. 11-CV-2650 JLS
8 || WVG, 2012 WL 1610015, at *2 (S.D. Cal. May 8, 2012) (dismissing the complaint and
9 || denying the IFP and TRO motions as moot). Thus, Plaintiff's TRO Application is moot.
10 Ht. CONCLUSION
11 Based on the foregoing, the Court:
12 1. DENIES Plaintiff's IFP Application (Doc. 2) with leave to file a renewed
13 application.
14 2. DISMISSES this action without prejudice based on Plaintiff's failure to pay
15 the full $405 civil filing fee required by 28 U.S.C. § 1914(a).
16 3. DENIES Plaintiff's TRO Application (Doc. 3), and the related Emergency
17 Motion (Doc. 4), without prejudice as moot.
18 To proceed with this action, Plaintiff must either (a) prepay the entire $405 civil
19 || filing fee in one lump sum, or (b) file a renewed IFP application providing clear and legible
20 answers. If Plaintiff chooses not to comply with this Order by either paying the $405 civil
21 || filing fees or by submitting a properly supported IFP Application, this case will remain
22 || dismissed without prejudice without further order of the Court based on Plaintiff’s failure
23 comply with 28 U.S.C. § 1914(a).
24 IT IS SO ORDERED.
25 DATE: June 10, 2025
26 Get Bismude, Notary! D
17 HON. RUTH BERMUDEZ'MONTENEGRO
UNITED STATES DISTRICT JUDGE
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