Opinion
CASE NO. C19-5530RBL
06-21-2019
PERRY LEE WYSINGER, Plaintiff, v. DEPARTMENT OF VETERANS AFFAIRS, Defendant.
ORDER
THIS MATTER is before the Court on Plaintiff Wysinger's Motion for Leave to proceed in forma pauperis, supported by his proposed complaint. [Dkt. # 1]. Wysinger is apparently a veteran, and he claims that the VA "took away" a portion of his pension 27 years ago, possibly because of the fact he was also receiving social security payments. He seeks monthly payments of $669 for 27 years, or $ 216, 756, plus a small amount for pain and suffering. Wysinger also submits evidence that he already sued on this claim (at least once) in Louisiana (Cause No. 18-cv-00568-TAD) and that that case was dismissed without prejudice for lack of subject jurisdiction.
A district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The Court has broad discretion in resolving the application, but "the privilege of proceeding in forma pauperis in civil actions for damages should be sparingly granted." Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963).
A person is eligible to proceed in forma pauperis if they are unable to pay the costs of filing and still provide the necessities of life. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 203 (1993) (internal quotations omitted). This generally includes incarcerated individuals with no assets and persons who are unemployed and dependent on government assistance. See, e.g., Ilagan v. McDonald, 2016 U.S. Dist. LEXIS 79889, at *2 (D. Nev. June 16, 2016) (granting petition based on unemployment and zero income); Reed v. Martinez, 2015 U.S. Dist. LEXIS 80629, at *1, 2015 WL 3821514 (D. Nev. June 19, 2015) (granting petition for incarcerated individual on condition that applicant provides monthly payments towards filing fee). It does not include those whose access to the court system is not blocked by their financial constraints, but rather are in a position of having to weigh the financial constraints pursuing a case imposes. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 686 F. Supp. 385, 388 (N.D. N.Y.), aff'd, 865 F.2d 22 (2d Cir. 1988) (denying petition to proceed IFP because petitioner and his wife had a combined annual income of between $34,000 and $37,000).
Moreover, a court should "deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is frivolous if "it ha[s] no arguable substance in law or fact." Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
A pro se Plaintiff's complaint is to be construed liberally, but like any other complaint it must nevertheless contain factual assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim for relief is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Ordinarily, the Court will permit pro se litigants an opportunity to amend their complaint in order to state a plausible claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) ("Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.")
Wysinger's proposed complaint does not meet this standard. First, there is no indication that this Court has jurisdiction over the case, or that venue is proper here. Wysinger and the VA office he is attempting to sue are both located in Louisiana, and all the correspondence attached to the complaint, and all the events described, occurred in Louisiana. Second, it appears that most of the claims are time-barred (Wysinger is suing over a decision made almost three decades ago). The basis for his claim that he is entitled to a pension at all is unclear, and it appears that he may have already sued an lost on the claims he seeks to re-assert here.
The Motion for Leave to Proceed in forma pauperis is therefore DENIED. Wysinger shall pay the filing fee or file a proposed amended complaint within 21 days of this order, or the case will be dismissed. Any such amended complaint should address the legal basis for his claim, the timeliness of his claim, the basis for this Court's jurisdiction over his claim, why this is the correct location for his claim, and the outcome of any prior lawsuits or administrative processes he has pursued to recover his pension payments.
IT IS SO ORDERED.
Dated this 21st day of June, 2019.
/s/_________
Ronald B. Leighton
United States District Judge