United States District Court, D. Hawaii
LEONARD G. HOROWITZ, Appellant,
PAUL J. SULLA, Jr., et al., Appellees. Bankr. No. 16-00239
ORDER DENYING APPLICATION TO PROCEED IN FORMA
Derrick K. Watson, United States District Judge
April 21, 2017, Appellant Leonard G. Horowitz, proceeding pro
se, filed in United States Bankruptcy Court, District of
Hawaii: (1) a Notice of Appeal And Statement Of Election, and
(2) an Application To Proceed In District Court Without
Prepaying Fees Or Costs, seeking to proceed in forma
pauperis on appeal (“IFP
Application”). Federal courts can authorize the
commencement of any suit without prepayment of fees or
security by a person who submits an affidavit that
demonstrates he or she is unable to pay. See 28
U.S.C. § 1915(a)(1). “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) (citing Adkins v.
E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (The affidavit must “state the
facts as to affiant's poverty with some particularity,
definiteness and certainty.”) (internal quotation
reviewing an application filed pursuant to Section 1915(a),
“[t]he only determination to be made by the court . . .
is whether the statements in the affidavit satisfy the
requirement of poverty.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he or she is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
the IFP Application indicates that although Horowitz is not
employed and/or has earned no income in wages during the past
twelve months, he has received $1500 per month in
“royalties from books, ” and owns a vehicle worth
$500. Horowitz lists debts in the amount of $150, 000 in
legal fees and $245, 000 from a “past business
contract.” He pays $700 per month for rent and has no
dependents. Based upon the IFP Application, Horowitz's
income is above the poverty threshold identified by the
Department of Health and Human Services (“HHS”)
2017 Poverty Guidelines. See 2017 HHS Poverty
Guidelines, available at
-of-the-hhs-poverty-guidelines (indicating that the poverty
threshold for a one-person household in Hawaii is $13, 860).
Horowitz has debts and other expenses, as demonstrated by the
IFP Application and bankruptcy filing, the Court's
independent review of all the financial information in the
record demonstrates that he fails to qualify for IFP status
under Section 1915(a). The Court acknowledges that Horowitz's
stated debts and expenses consume much of his monthly income
from book royalties. Nevertheless, his IFP Application does
not establish that he cannot both pay the costs of litigating
this case “and still be able to provide himself . . .
with the necessities of life.” See Adkins, 335
U.S. at 339 (internal quotation marks omitted). Accordingly,
the Court finds that Horowitz has not made the required
showing under Section 1915 to proceed without prepayment of
fees, and DENIES his IFP Application.
Horowitz wishes to proceed with this appeal, he must remit
the appropriate filing fee by June 14, 2017. Failure to do so
will result in the automatic dismissal of this action.
The Notice of Appeal and IFP
Application were transmitted to this district court on May 2,
2017, and the instant civil action was opened on May 3, 2017.
Dkt. No. 1. The IFP Application is properly before the
district court, rather than the bankruptcy court. See In
re Perronton, 958 F.2d 889, 896 (9th Cir. 1992)
(bankruptcy court lacks authority to waive fees under Section
The Court takes judicial notice of
filings in the underlying Chapter 13 Bankruptcy. See
Fed.R.Evid. 201(b); In re Keahey, 414 F. App'x
919, 923 (9th Cir. 2011). Horowitz, in both March and August
of 2016, filed bankruptcy schedules and statements listing
substantial assets in bankruptcy court that were not
identified on the IFP Application, such as two limited
liability companies (with his 50% interests valued at $60,
000 and $17, 000 respectively), domains and trademarks,
accounts receivable, artwork, jewelry, and musical
instruments worth thousands of dollars. See Bankr.
No. 16-00239, Dkt. Nos. 4, 7, 114, and 115. Several of these
same assets were likewise absent from a previous IFP
Application filed by Horowitz that was denied by the district
court on June 14, 2016. See Horowitz v. ...