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Kelly v. Zuckerberg

United States District Court, Southern District of California
Apr 19, 2022
3:22-cv-500-CAB-KSC (S.D. Cal. Apr. 19, 2022)

Opinion

3:22-cv-500-CAB-KSC

04-19-2022

Dolores Kelly, Plaintiff, v. Mark Zuckerberg, Defendant.


ORDER DENYING WITHOUT PREJUDICE APPLICATION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2] AND DENYING AS MOOT MOTION TO APPOINT COUNSEL [Doc. No. 3]

Hon. Cathy Ann Bencivengo United States District Judge

On April 12, 2022, Plaintiff Dolores Kelly filed a complaint. [Doc. No. 1.] Plaintiff also filed an application to proceed in forma pauperis (“IFP”) [Doc. No. 2] and a motion to appoint counsel [Doc. No. 3]. For the following reasons, plaintiff's application is DENIED.

Generally, all parties instituting a civil action in this 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 filing 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). “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness and certainty.” Id. (internal quotation marks omitted).

In her IFP application, Plaintiff fails to answer any of the questions regarding whether she has any income or assets of any kind. [Doc. No. 2, Questions 1-7.] She also fails to respond to the question about her monthly expenses. [Id., Question 8.] It is simply not credible to assume that Plaintiff has no income and no expenses.

Based on the lack of “particularity, definiteness and certainty” in the information provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, Plaintiff's application to proceed IFP [Doc. No. 2] is DENIED without prejudice, and Plaintiff's motion to appoint counsel [Doc. No. 3] is DENIED as moot.

Plaintiff shall have until May 9, 2022 to either pay the filing fee, or file a new application to proceed IFP that provides with “particularity, definiteness, and certainty” the required information. In particular, Plaintiff shall respond truthfully to Questions 1 - 8. If the filing fee is not paid or a renewed application to proceed in forma pauperis is not filed by May 9, 2022, the Clerk of the Court shall dismiss the case without prejudice and terminate the action.

IT IS SO ORDERED.


Summaries of

Kelly v. Zuckerberg

United States District Court, Southern District of California
Apr 19, 2022
3:22-cv-500-CAB-KSC (S.D. Cal. Apr. 19, 2022)
Case details for

Kelly v. Zuckerberg

Case Details

Full title:Dolores Kelly, Plaintiff, v. Mark Zuckerberg, Defendant.

Court:United States District Court, Southern District of California

Date published: Apr 19, 2022

Citations

3:22-cv-500-CAB-KSC (S.D. Cal. Apr. 19, 2022)