Opinion
No. C 08-02432 SBA.
May 14, 2008
ORDER [Docket No. 3]
INTRODUCTION
Before the Court is plaintiff Sophia Wong's Application for Leave to Proceed in Forma Pauperis (the "Application") [Docket No. 3]. For the reasons discussed below, the Application is denied with 30 days leave to amend.
BACKGROUND
On May 12, 2008, Wong filed a Complaint and the Application. See Docket Nos. 1, 3. Wong claims she is mentally disabled and receives Social Security disability benefits. Compl. at 8:2-5. She also claims her benefits go to a payee, whom she has named as a defendant, who did not pay her rent for 15 months, resulting in her eviction by her landlord, the San Francisco Housing Authority (the "SFHA"), in Superior Court case CUD-08-625494. Id. at 8:11-20, 9:17, 11:24-25. As a result, she alleges she is now homeless. Id. at 1:1, 10:3-6, 10:15-16.
LEGAL STANDARD
I. Demonstrating In Forma Pauperis Status
The benefit of proceeding in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). As 28 U.S.C. § 1915(a)(1) states, in part:
Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor.28 U.S.C. § 1915(a)(1).
A petitioner need not "be absolutely destitute to enjoy the benefit of this statute." Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339 (1948); Jefferson v. U.S., 277 F.2d 723, 725 (9th Cir. 1960), cert. denied, 364 U.S. 896 (1960). An affidavit is sufficient if it states a person cannot pay or provide security for court costs and still provide himself or herself and any dependents with the necessities of life. Rowland v. Cal. Men's Colony, 506 U.S. 194, 203 (1993) (citing Adkins, 335 U.S. at 339). The facts concerning the applicant's poverty must be stated with some "particularity, definiteness and certainty." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). The Court has the discretion to make a factual inquiry into a plaintiff's financial status and to deny their request to proceed in forma pauperis where they are unable or unwilling to verify their poverty. Id. If a court determines a plaintiff's allegation of poverty is untrue, it shall dismiss their case. 28 U.S.C. § 1915(e)(2).
II. Claims Review under 28 U.S.C. § 1915
Title 28 U.S.C. § 1915 also authorizes a district court to dismiss a claim filed in forma pauperis "at any time" if it determines: (1) the allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) the action fails to state a claim; or (4) the action seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). Pro se pleadings must be liberally construed. Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a complaint, however, a court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Miranda v. Clark County, Nev., 279 F.3d 1102, 1106 (9th Cir. 2002) ("conclusory allegations of law and unwarranted inferences will not defeat a motion to dismiss for failure to state a claim"); Sprewell v. Golden State Warriors, 266 F.3d 1187 (9th Cir. 2001); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim"). Leave to amend is properly denied "where the amendment would be futile." DeSoto v. Yellow Freight Sys., 957 F.2d 655, 659 (9th Cir. 1992). But if a plaintiff's complaint is found deficient and an amendment could possibly cure the deficiency, the complaint must be dismissed with leave to amend. See Eldridge v. Block, 832 F.2d 1132, 1135-37 (9th Cir. 1987).
I. The Application
The Court has reviewed Wong's Application and found it unsigned. See Application at 4. Further, it is incomplete. See id. And, it contains irrelevant argument. See id. The Court thus cannot determine whether Wong is able to pay the Court's filing fee and provide herself with the necessities of life.
II. The Claims
As the Application is defective, the Court does not reach Wong's claims.
CONCLUSION
The Court DENIES without prejudice plaintiff Sophia Wong's Application for Leave to Proceed in Forma Pauperis [Docket No. 3]. The Court also orders Wong to: (1) file an amended application within 30 days; or (2) pay the requisite filing fee within 30 days; or (3) be dismissed for failure to prosecute. The Court warns Wong, again, if within 30 days she does not either file an amended application or pay the requisite filing fee, the Court will dismiss this matter without prejudice for failure to prosecute.
IT IS SO ORDERED.