United States District Court, D. Hawaii
ORDER DENYING WITHOUT PREJUDICE: (1) APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS,
ECF NO. 2; AND (2) REQUEST FOR APPOINTMENT OF COUNSEL, ECF
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
January 27, 2019, pro se Plaintiff James Hopkins
(“Plaintiff”) filed (1) an
employment-discrimination Complaint, ECF No. 1, against
Defendant Subaru Telescope National Astronomical Observatory
Of Japan, (2) an Application to Proceed in District Court
Without Prepaying Fees and Costs (“IFP
Application”), ECF No. 2, and (3) a Request for
Appointment of Counsel, ECF No. 3. For the reasons discussed
below, Plaintiff's IFP Application and Request for
Appointment of Counsel are DENIED without prejudice.
courts can authorize the commencement of any suit, without
prepayment of fees or security, by a person who submits an
affidavit that includes a statement of all assets the person
possesses, demonstrating he is unable to pay such costs or
give such security. 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., Inc., 335 U.S. 331, 339 (1948); see also United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
(stating that the affidavit must “state the facts as to
affiant's poverty with some particularity, definiteness
and certainty” (internal quotation omitted)).
reviewing a motion filed pursuant to § 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 § 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
review of Plaintiff's IFP Application, the court cannot
discern whether Plaintiff is unable to pay the court fees to
commence this action. Plaintiff indicates that he received
income totaling $35, 964 over the past year: $14, 720 from a
“TIAA Retirement Account, ” a personal loan of
$12, 500, $2, 244 in federal and state tax refunds, $3, 000
from Creative Arts Hawaii/Proservice HR Service, and $3, 500
from an individual. IFP Application ¶ 3. Plaintiff
indicates that he does not expect to receive another loan or
additional income from Creative Arts Hawaii, but it is not
clear whether he expects to receive tax refunds for tax year
2018, whether the $3, 500 he received was income or a gift,
and whether he expects to receive other income or gifts this
year. Id. Plaintiff states that his assets include
an unspecified amount of “TIAA-CREF Funds” and a
1997 Subaru Forester, but that he has no funds in a checking
or savings account. Id. ¶¶ 4-5.
does not list a home and its value as an asset, but he states
that he has a monthly mortgage expense of $741. Id.
¶ 6. Plaintiff lists additional monthly expenses of $1,
280 for loan and a credit card debt, $141 for home and auto
insurance, $491 for utilities, and $500 for gas and food.
the court does not apply the federal poverty guidelines as
the sole basis to grant or deny in forma pauperis status, the
court notes that the current federal poverty guidelines
issued by the United States Department of Health & Human
Services (“HHS”) for a single person living in
Hawaii is $13, 960. See Annual Update of the HHS
Poverty Guidelines, https://www.federalregister.
(last visited Mar. 20, 2019). Plaintiff's income of $35,
964 over the last year far exceeds this federally-established
though Plaintiff has significant debt, given the lack of
clarity regarding Plaintiff's income, assets, and the
value of those assets, the court finds that Plaintiff has
failed to demonstrate the requirement of poverty.
Accordingly, Plaintiff's IFP Application is DENIED.
However, Plaintiff is granted leave to file a new IFP
Application by April 8, 2019 that provides further
clarification of his income, assets, debts, and expenses.
Motion for Appointment of Counsel
a civil litigant has no right to counsel. See Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing
Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981)). However, pursuant to 28 U.S.C. § 1915(e)(1), the
court “may under ‘exceptional circumstances'
appoint counsel for indigent civil litigants.”
Id.; see also Agyeman v. Corr. Corp. of
Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (“The
decision to appoint such counsel is . . . granted only in
exceptional circumstances.”). In determining whether
“exceptional circumstances” exist, the court must
consider a litigant's “‘likelihood of success
on the merits as well as the [litigant's] ability . . .
to articulate his claims pro se in light of the complexity of
the legal issues involved.'” Id. (quoting
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983)). Difficulties that any litigant proceeding pro se
would face “do not indicate exceptional factors.”
Id. (quoting Wood v. Housewright, 900 F.2d
1332, 1335-36 (9th Cir. 1990)).
Plaintiff has not demonstrated in forma pauperis status, he
is not eligible for court-appointed pro bono counsel under
§ 1915(e)(1). Thus, the Motion for Appointment of
Counsel is DENIED. However, if Plaintiff is granted in forma
pauperis status in the future, and he believes that he can
demonstrate the ...