Maria Escobedo v. Apple American Group , 787 F.3d 1226 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ESCOBEDO, No. 12-16244
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-00895-
PMP-CWH
APPLEBEES,
Defendant, OPINION
and
APPLE AMERICAN GROUP; APPLE
NEVADA, LLC,
Defendants-Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted
November 18, 2014—Pasadena, California
Filed June 4, 2015
2 ESCOBEDO V. APPLE AMERICAN GROUP
Before: Kim McLane Wardlaw and Richard A. Paez,
Circuit Judges, and Michael A. Ponsor,* Senior District Judge.
Opinion by Judge Ponsor
SUMMARY**
Labor Law
The panel reversed the district court’s (1) dismissal of a
Title VII action as untimely and (2) denial of an application
to proceed in forma pauperis.
The panel held that for purposes of the ninety-day filing
limit set forth in 42 U.S.C. § 2000e-5(f)(1), the filing date of
a complaint is the date it is delivered to the court clerk,
whether it is submitted with or without an in forma pauperis
application.
The panel further held that it is an abuse of discretion to
deny an in forma pauperis application based upon a spouse’s
financial resources, unless there is a reasonable inquiry into
(a) whether the spouse’s resources are actually available to
the would-be plaintiff and (b) whether the spouse in fact has
sufficient funds, given his or her own expenses, to assist in
paying the fee.
*
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ESCOBEDO V. APPLE AMERICAN GROUP 3
COUNSEL
Katelin Eastman (argued) and Sarah Gerdes (argued),
Pepperdine University School of Law, Ninth Circuit
Appellate Advocacy Clinic, Malibu, California; Jeremy B.
Rosen, Horvitz & Levy LLP, Encino, California, for Plaintiff-
Appellant.
Melissa Leigh Griffin (argued) and Beth Freuchtenicht Aney,
San Francisco, California, for Defendants-Appellees.
OPINION
PONSOR, Senior District Judge:
Appellant Maria Escobedo, acting pro se, submitted her
complaint, charging Appellee Apple Nevada with sexual
harassment and discrimination, to the U.S. District Court for
the District of Nevada on June 2, 2011. The complaint
arrived at the clerk’s office sixty-nine days after Escobedo
received her right-to-sue letter from the Equal Employment
Opportunity Commission, well within the ninety-day limit set
forth in 42 U.S.C. § 2000e-5(f)(1).1
Along with her complaint, Escobedo filed an application
to proceed in forma pauperis (“IFP”). Thirty-four days later,
on July 6, 2011, outside the ninety-day deadline, a magistrate
judge first heard argument on the application and erroneously
denied it, based upon ungrounded assumptions regarding the
1
This appeal originally included Apple American Group. However, as
Escobedo’s Amended Complaint named only Apple Nevada, Apple
American Group is no longer a party to the suit.
4 ESCOBEDO V. APPLE AMERICAN GROUP
availability of Escobedo’s husband’s resources. During the
hearing, however, the magistrate judge told Escobedo that she
would have an additional thirty days to pay the $350 fee.
Escobedo paid the fee on August 5, 2011, within the allotted
thirty days. Despite this, the district court subsequently
dismissed her complaint for violating the ninety-day
limitations period.
Escobedo (represented by counsel) contends, first, that the
district court erred in dismissing her complaint as untimely
and, second, that the magistrate judge erred in denying her
IFP application. We agree on both points and reverse.2
We now hold that the filing date of a complaint is the date
it is delivered to the clerk, whether it is submitted with or
without an IFP application. Obviously, if an IFP application
is submitted with the complaint in lieu of the filing fee, and
the application is thereafter denied, the district court will be
free to dismiss the complaint if the fee is not paid within a
reasonable time following the denial. The filing date,
however, will be the date on which the complaint was
originally delivered to the clerk’s office along with the IFP
application.
2
There are five motions pending in this case, and we deny them all;
none of the material they identify was relied upon for purposes of this
opinion. Appellant’s Motion to File an Audio Cassette (Dkt. No. 20) and
Motion for Judicial Notice (Dkt. No. 43) are denied because they are
irrelevant to the issues before the court. Appellee’s Motions for Judicial
Notice (Dkt. Nos. 11 & 49) are denied as well because they are immaterial
to our analysis; in addition, the issues they attempt to raise are not
properly before the court. Finally, Appellee’s last Motion for Judicial
Notice (Dkt. No. 56) appears to be a duplicate of an earlier motion (Dkt.
No. 49) and is, accordingly, denied.
ESCOBEDO V. APPLE AMERICAN GROUP 5
We further hold that it is an abuse of discretion to deny an
IFP application based upon a spouse’s financial resources,
unless there is a reasonable inquiry into (a) whether the
spouse’s resources are actually available to the would-be
plaintiff and (b) whether the spouse in fact has sufficient
funds, given his or her own expenses, to assist in paying the
fee.
I. FACTUAL AND PROCEDURAL BACKGROUND
Escobedo worked as a prep cook for seven years at an
Applebee’s restaurant in Las Vegas, Nevada owned by Apple
Nevada. On November 3, 2010, Escobedo reported to the
Equal Employment Opportunity Commission (EEOC) that
her employer had subjected her to sexual harassment,
discrimination on the basis of her gender and national origin,
and retaliation. A review of her claims reveals that they
could not, by any means, be characterized as frivolous.
EEOC records apparently suggest that a letter may have gone
out to Escobedo on December 16, 2010, containing a Notice
of Right to Sue. Escobedo never received it. On January 30,
2011, Applebee’s fired Escobedo. In March 2011, concerned
that she had not heard anything, Escobedo contacted the
EEOC. On March 25, 2011, the EEOC sent out, and
Escobedo for the first time received, a copy of the Notice of
Right to Sue3
3
Apple Nevada argues that the March 25 date should be disregarded
because Escobedo must be presumed, despite her disclaimer, to have
received the earlier, December 16 letter within three days of its being sent.
See Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961
(9th Cir. 2001) (“The mailbox rule provides that the proper and timely
mailing of a document raises a rebuttable presumption that the document
has been received by the addressee in the usual time.”). This argument
has no merit. Any presumption was rebutted when the district court
6 ESCOBEDO V. APPLE AMERICAN GROUP
On June 2, 2011, sixty-nine days after receiving the right-
to-sue letter, Escobedo submitted her pro se complaint to the
U.S. District Court for the District of Nevada, bringing claims
of sexual harassment and discrimination on the basis of
gender and national origin against Applebee’s.4 With her
complaint, Escobedo filed an IFP application, in which she
certified that she could not pay the filing fee for her
complaint because of her poverty. She stated in her
application that she had income of $210 per week and paid
$684 per month in rent, as well as $15 a month on existing
credit card debts. Given that these expenses left her with less
than $150 per month for all other expenses, including food
and medical costs, Escobedo contended that the $350 filing
fee was sufficiently onerous that it should be waived.
On July 6, 2011, thirty-nine days after Escobedo filed her
complaint, and 103 days after receiving her March 25 right-
to-sue letter, Escobedo obtained a hearing before a magistrate
judge on her IFP application. When asked by the judge how
she paid $684 per month for rent when she only received
$180 a week5 in unemployment compensation, Escobedo
accepted Escobedo’s representation under oath that she had never received
the first letter, and fixed March 25, 2011, as the jumping-off date for the
calculation of the statute of limitations. This factual finding was well
supported by the record and within the district court’s discretion.
Moreover, as Apple Nevada recognizes, Escobedo is entitled to all
reasonable inferences in her favor at the Rule 12(b)(6) stage. Fed. R. Civ.
P. 12(b)(6).
4
Subsequently, Escobedo amended her complaint in September 2011 to
include a claim for retaliation as well.
5
An unexplained discrepancy exists between the weekly income
Escobedo claimed in her written IFP application ($210) and the amount
she claimed in open court during the hearing ($180). There is no reason
ESCOBEDO V. APPLE AMERICAN GROUP 7
replied that her husband helped with her housing expense.
The magistrate judge next inquired into her husband’s
monthly income, which Escobedo stated was $1800 per
month in social security benefits. Based on this information
and the amount of Escobedo’s income, the magistrate judge
denied Escobedo’s IFP application. The record does not
reveal any inquiry by the magistrate judge as to whether her
husband’s financial resources were actually available to
Escobedo (beyond the help with the cost of housing), or
whether her husband had other offsetting legitimate expenses
that would reduce or eliminate his ability to assist in paying
the filing fee.
Following this, the magistrate judge set a deadline of
August 5, 2011, for Escobedo to pay the fee. In this portion
of the hearing, the magistrate judge and Escobedo had the
following ambiguous exchange:
The Court:
All right. Ms. Escobedo, what I’m going
to do is deny the motion to proceed in
forma pauperis. Because of your
household income, the Court is going to
require you to pay the filing fee in this
case. Once you pay that filing fee, then
the complaint will be filed and it can be
served by you on the Defendant
Applebees.
to think this minor discrepancy evidenced bad faith or deceitfulness. In
any event, the difference does not affect our analysis.
8 ESCOBEDO V. APPLE AMERICAN GROUP
Obviously, you’re aware that there may be
a motion to dismiss your complaint by
Applebees based on a failure to timely
file. The Court cannot and will not
address that issue until you serve
Applebees and they’re actually in the
lawsuit to respond to that question. I will
indicate and you see the letter already
from the EEOC Commission that those
requirements of filing dates are very firm
and there will not be room to waive that if
you’ve missed a filing date.
Now, today is the 6th of July. Can you
pay that filing fee by August the 5th?
That would be one month from now.
The Plaintiff:
How much would it be?
The Court:
I believe the filing fee now is $350.
The Plaintiff:
Very good.
The Court:
Okay. That’ll be due then by August 5,
2011. If nothing’s paid or filed by then,
ESCOBEDO V. APPLE AMERICAN GROUP 9
then of course the case would be
dismissed.
Escobedo managed to pay the filing fee on August 5,
2011, within the district court’s time frame, but 133 days
following the receipt of the right-to-sue letter. Even if the
ninety-day clock were tolled during the thirty-four days while
Escobedo’s IFP application awaited a ruling (to which
Applebees vigorously objects), Escobedo would still be nine
days outside the ninety-day limitations period, if we were to
agree with the lower court that the complaint could only be
deemed “filed” once the fee was paid and not when it was
first delivered to the clerk.
On March 8, 2012, Apple Nevada filed a motion to
dismiss Escobedo’s Amended Complaint. Escobedo filed a
pro se opposition. On May 15, 2012, the district court heard
argument on the motion and granted it both as to Escobedo’s
complaint and as to her amended complaint. The district
court construed the complaint’s filing date to be the date on
which the filing fee was paid, August 5, 2011, and not the
date the complaint was originally delivered to the clerk’s
office, June 2, 2011. Though accepting that the statute of
limitations may have been tolled while the IFP application
awaited a ruling, the district court found that, due to the time
that had elapsed between the date of the magistrate judge’s
denial of the application and the date on which she paid the
fee, Escobedo’s complaint was actually filed nine days
outside the statute of limitations period. Entry of judgment
in favor of Apple Nevada followed.
Escobedo filed a timely appeal on May 24, 2012, and on
October 22, 2013, our court appointed counsel. Along with
the Pro Bono Order, we requested that the parties address the
10 ESCOBEDO V. APPLE AMERICAN GROUP
relevance of the constructive filing rule, as explained in Loya
v. Desert Sands Unified Sch. Dist., 721 F.2d 279 (9th Cir.
1983), and as applied to an analogous situation in Baker v. La
Cumbre Mgmt. Co., Inc., 9 Fed. App’x 752 ([9th Cir.] 2001)
(unpublished). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, which extends to an appeal of a final decision of a
United States district court.
II. DISCUSSION
A. The Timeliness of Escobedo’s Complaint
The dispute regarding the timeliness of Escobedo’s
complaint presents a question of law, which we review de
novo. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir.
2003); Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th
Cir. 1986).
As noted above, the district court assumed that the
complaint in this case, despite its timely delivery to the clerk,
could not be considered “filed” until the $350 fee had either
been paid or waived as a result of a favorable ruling on the
IFP application. Although it recognized that the pendency of
the IFP application tolled the statute of limitations up until
the date the magistrate judge ruled—a point Apple Nevada
takes issue with—the district court determined that the tolling
ceased immediately upon the denial of the application, even
though the magistrate judge granted Escobedo an additional
thirty days to pay the fee. Accordingly, since Escobedo paid
the filing fee at least ninety-nine days after receipt of the
EEOC’s right-to-sue letter, the district court dismissed
Escobedo’s complaint as untimely.
ESCOBEDO V. APPLE AMERICAN GROUP 11
The parties have largely cast their dispute as being over
(1) whether Escobedo should be deemed to have
“constructively” filed her complaint when she first delivered
it along with the IFP application to the clerk’s office, and (or
alternatively) (2) whether the ninety-day limitations period
should have been tolled both during the time between
Escobedo’s filing of her IFP application and the magistrate
judge’s ruling on it, as well as during the thirty days
following the ruling—i.e., the period the magistrate judge
gave Escobedo to pay the fee.
Despite counsel’s resourceful efforts, neither the
“constructive” filing theory nor the “equitable tolling”
analysis fits well with the facts of this case. Black’s Law
Dictionary defines “constructive” as “[l]egally imputed;
existing by virtue of a legal fiction though not existing in
fact.” Black’s Law Dictionary 356 (9th ed. 2009). Analysis
of whether it is proper to deem something as “constructively”
occurring can implicate equitable considerations—where
there is a need, for example, to vindicate substantial justice—
but this is not always, and probably not usually, the way the
term is used. Black’s Law Dictionary offers an example of a
use of “constructive,” where a shift supervisor is deemed to
have “constructive” knowledge of a machine’s failure even
though he did not actually know about it until two days later.
Id.One of the cases that we asked the parties to address,
Loya, provides a good example of the use of this kind of legal
fiction. In that case plaintiff’s complaint arrived within the
limitations period, but the clerk rejected it because it was
typed on 8½ by 13 inch paper, instead of 8½ by 11 inch
paper. By the time the complaint arrived on the right-sized
paper, the limitations deadline had passed, and the district
12 ESCOBEDO V. APPLE AMERICAN GROUP
court dismissed it. We reversed, holding that “the district
court should regard as ‘filed’ a complaint which arrives in the
custody of the clerk within the statutory period but fails to
conform with formal requirements in local rules.” Loya,
721 F.2d at 281. Some touch of fiction was needed in Loya
because the actual complaint arrived some time after its
“constructive” filing date.
Similarly, in Cintron v. Union Pacific Railroad Company,
813 F.2d 917 (9th Cir. 1987), the clerk mailed back a timely
complaint to counsel because it lacked two holes punched in
the top, omitted a cover sheet, and arrived with a check for
$99 instead of the correct fee, which was $60. By the time
the attorney re-filed a revised document with the correct fee,
the limitations period had run, and the district court dismissed
the new complaint as untimely. Again, we reversed, stating
that “[t]he consensus is that ‘[p]apers and pleadings including
the original complaint are considered filed when they are
placed in the possession of the clerk of the court.’” Id. at 920(second alteration in original) (quoting Charles Wright &
Arthur Miller, Federal Practice and Procedure § 1153 (1969),
and citing United States v. Dae Rim Fishery Co., 794 F.2d
1392 (9th Cir. 1986)). Based on this, we concluded that “the
appellant constructively filed his complaint when . . . he
delivered it to the clerk of the court, though he was not in
compliance with local rules and though he overpaid the filing
fee.” Id. at 921. Again, it was understandable to talk about
“constructive” filing in Cintron because the actual complaint
physically arrived some time after the date it was deemed to
have been filed.
Here, scant justification exists to invoke any “fiction.” It
is undisputed that the complaint was actually, physically
delivered to the clerk on June 2, 2011, and was retained by
ESCOBEDO V. APPLE AMERICAN GROUP 13
the clerk. We are not called upon to contrast true reality “A”
with imputed reality “B.” Rather, the task is to determine
what, as a legal matter, occurred in the context of the actual
facts.
This case offers facts much more like—indeed, identical
to—the facts we examined in our unpublished decision in
Baker. There, the plaintiff filed his Title VII complaint
within the ninety-day limitations period along with an IFP
application. The district court denied the petition on a date
outside the limitations deadline, the plaintiff paid the fee, and
the district court thereafter dismissed the complaint as
untimely. Our brief disposition made no reference to
“constructive” filing—it did not need to—but merely held
that the complaint had been filed when originally delivered to
the clerk. This simpler and more sensible approach comports
with the facts now before this court and therefore is the one
we approve here.
Arguments regarding the justification for “tolling” the
running of a limitations period are, of course, frequently
encountered, and—in contrast to situations where courts
consider whether something has “constructively” occurred—
issues of equity lie at their heart. See United States v. Kwai
Fun Wong, 135 S. Ct. 1625 (2015) (recognizing that “a court
usually may pause the running of a limitations statute in
private litigation when a party has pursued his rights
diligently but some extraordinary circumstance prevents him
from meeting a deadline” (internal quotations omitted)). If
Escobedo needed to invoke the doctrine of equitable tolling
here, she would, given her diligence, have an overpowering
argument. But invocation of the doctrine is unnecessary.
Unlike Kwai Fun Wong, where delay by the court rendered a
claim untimely despite the plaintiff’s diligence, the simple
14 ESCOBEDO V. APPLE AMERICAN GROUP
fact is that Escobedo filed her complaint in this case well
prior to the deadline. No tolling is necessary.
We begin with the basics. Federal Rule of Civil
Procedure 3 states that “[a] civil action is commenced by
filing a complaint with the court.” A related statutory
provision, 28 U.S.C. § 1914(a) provides that “[t]he clerk of
each district court shall require the parties instituting any civil
action . . . to pay a filing fee of $350.” Section 1915(a)(1)
allows federal courts to authorize commencement of a suit
“without prepayment of fees or security therefor, by a person
who submits an affidavit” demonstrating “that the person is
unable to pay such fees or give security therefor.” See Ingle
v. Circuit City Stores, Inc., 328 F.3d 1165, 1177 (9th Cir.
2003) (citing § 1915 and stating that “plaintiffs in all types of
cases may be exempt from paying court fees upon a showing
of indigence”).
Nothing in § 1914 or § 1915 contradicts the simple
directive set forth in Rule 3 that a civil action is commenced
by filing a complaint with the court. As with other pleadings
and papers, a complaint is filed “by delivering it . . . to the
clerk.” Fed. R. Civ. P. 5(d)(2). No justification exists to alter
the definition of “filing” simply because a complaint is
submitted to the clerk’s office along with an IFP application.
The district court’s ruling that the statute of limitations
will be tolled while a plaintiff’s IFP application is pending is
in line with the approach employed by other circuits. See
Truitt v. Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)
(holding that “the ninety-day period should be tolled during
the pendency of a plaintiff’s IFP application”); Jarrett v. US
Sprint Commc’ns Co., 22 F.3d 256, 259 (10th Cir. 1994)
(noting that constructive filing “exists until the IFP motion is
ESCOBEDO V. APPLE AMERICAN GROUP 15
ruled upon” and that a plaintiff should be entitled to “a ‘grace
period’ in which to pay the filing fee” after a denial); see also
Williams-Guice v. Bd. of Educ. of Chicago, 45 F.3d 161, 165
(7th Cir. 1995) (Easterbrook, J.) (recognizing that the
limitations period “remains in suspension for a reasonable
time—perhaps a time defined by local rules—after the district
court’s order” denying an application to proceed IFP).
A necessary corollary to the rule that a complaint will be
deemed filed at the time it is delivered to the clerk with an
IFP application, and that no time will be deducted from any
limitations period while the application awaits a ruling, is that
a would-be plaintiff must be given a reasonable time after a
denial of an application to pay the fee. The Williams-Guice
and Jarrett decisions explicitly recognize this, and any other
approach would be untenable. For better or worse, it is far
from uncommon for litigants, rich and poor, to tender
complaints at or near the outer limit of the statute of
limitations—sometimes on the day before the statute is due
to run. In these cases, a subsequent denial of the IFP
application, perhaps (as here) weeks later, without a
reasonable opportunity to assemble the funds to pay the fee,
would be grossly unfair. Escobedo delivered her complaint
in a timely manner, accompanied by an IFP application
submitted in good faith, but found herself barred from access
to the court by an arbitrary trip wire arising purely from her
need for reasonable time to gather the funds to pay the fee
after her IFP application was denied.
Some uncertainty might hypothetically arise regarding
what period of time would be “reasonable” to permit a
plaintiff to pay the fee following denial of the IFP
application. That problem does not infect this case. The
16 ESCOBEDO V. APPLE AMERICAN GROUP
magistrate judge explicitly established a reasonable deadline
of thirty days, and Escobedo complied with it.
The authority governing when a notice of appeal is timely
provides a helpful analogy. In Parissi v. Telechron, Inc., the
Supreme Court reversed the dismissal of a notice of appeal as
untimely where the notice was received within the thirty-day
window, but the $5 fee was paid outside that period.
349 U.S. 46, 47 (1955). The court found that late payment of
the filing fee “did not vitiate the validity of petitioner’s notice
of appeal.” Id.; see also Klemm v. Astrue, 543 F.3d 1139,
1142 (9th Cir. 2008) (recognizing that a notice of appeal was
timely filed when placed in the hands of the clerk’s office
whether unaccompanied by a filing fee, or accompanied by a
postdated check); Gee v. Tenneco, Inc., 615 F.2d 857, 859
(9th Cir. 1980) (recognizing as timely a notice of appeal filed
within the prescribed time limit but where the fee was paid
after the time expired).
Given this background, the resolution of this case
emerges as simple. Escobedo filed her complaint when she
delivered it to the clerk’s office along with her IFP
application. Once the application was denied, she was
entitled to a reasonable time to pay the fee. Because she paid
the fee before the deadline set by the magistrate judge, her
complaint should not have been dismissed as untimely.
ESCOBEDO V. APPLE AMERICAN GROUP 17
B. The Denial of Escobedo’s IFP Application
Denials of IFP applications are reviewed for abuse of
discretion.6 O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
1990). When the district court applies the correct law to
facts that are not clearly erroneous but rules in an irrational
manner, it may be viewed as having abused its discretion.
Chang v. United States, 327 F.3d 911, 925 (9th Cir. 2003).
Similarly, when a district court rules on an issue without
giving a party an opportunity to explain, or without adequate
support on the record, it has abused its discretion. See
Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1450 (9th
Cir. 1993) (reversing and remanding the dismissal of a
complaint where district court did not give prisoner plaintiff
the opportunity to explain the drop in funds in his account);
cf. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260
(9th Cir. 2010) (finding that the district court abused it
discretion where “without support in the record, it summarily
denied” the plaintiff’s timely motion for an extension).
6
Apple Nevada contends as a threshold matter that this issue is not
properly before the court either because Escobedo should have appealed
the denial within thirty days of the order, pursuant to Fed. R. App. P.
4(a)(1)(A), or because Apple Nevada was not a party to the suit at the time
of the denial and thus lacks standing to defend the ruling. Neither of
Apple Nevada’s arguments holds any water. While Escobedo perhaps
could have appealed the denial of her IFP application at an earlier point,
she was not required to do so. An appeal from a final judgment
encompasses all antecedent orders. See Firestone Time & Rubber Co. v.
Risjord, 449 U.S. 368, 373–74 (1981). Furthermore, Apple Nevada’s
supposed “lack of standing” does not deprive Escobedo of the right to
review before this court. Of course, Apple Nevada was not obligated to
defend the district court’s denial of Escobedo’s IFP application, if it truly
felt it lacked standing. It could have remained silent on the issue, which
it certainly has not.
18 ESCOBEDO V. APPLE AMERICAN GROUP
Pursuant to 28 U.S.C. § 1915(a), a plaintiff may
commence an action without paying the filing fees where she
submits an affidavit stating that she lacks sufficient funds and
where her suit is not frivolous or malicious.7 Franklin v.
Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). 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. Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 339 (1948). The IFP statute does not itself
define what constitutes insufficient assets. As this court has
recognized, “[o]ne need not be absolutely destitute to obtain
benefits of the in forma pauperis statute.” Jefferson v. United
States, 277 F.2d 723, 725 (9th Cir. 1960). Nonetheless, a
plaintiff seeking IFP status must allege poverty “with some
particularity, definiteness and certainty.” United States v.
McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal
quotation marks omitted).
Two compelling questions arise from the denial of
Escobedo’s IFP petition.8 First, when are an individual’s
7
The district court did not deny the IFP application on this ground; as
noted above, Escobedo’s lawsuit is in no way frivolous or malicious.
8
Apple Nevada argues that Escobedo’s complaint should be dismissed
because her allegations of poverty are untrue. See 28 U.S.C. § 1915(e)(2)
(providing that “[n]otwithstanding any filing fee . . . that may have been
paid, the court shall dismiss the case at any time if the court determines
that – (A) the allegation of poverty is untrue”). In her application for IFP
status, Escobedo averred that she paid “rent,” which Apple Nevada
contends was untruthful since she and her husband owned their house.
The argument is without merit. To dismiss Escobedo’s complaint
pursuant to § 1915(e)(2), a showing of bad faith is required, not merely
inaccuracy. The scanty offering by Apple Nevada on this point suggests
that Escobedo’s allegations regarding her amount of “rent” were not
significantly different from what Apple Nevada concedes she paid for her
ESCOBEDO V. APPLE AMERICAN GROUP 19
assets and income too limited to pay the filing fee? See
28 U.S.C. § 1915(a)(1). Second, how should a court go about
determining whether the assets of a litigant’s spouse may be
considered in reviewing an IFP application?
In this case, the $350 fee represented roughly forty
percent of Escobedo’s monthly income before expenses.
Once her rent and debt payments were taken into account, she
would have had to dedicate the entirety of two-months’ worth
of her remaining funds, meaning that she would have to
forego eating during those sixty days, to save up to pay the
filing fee.
As noted above, there is no formula set forth by statute,
regulation, or case law to determine when someone is poor
enough to earn IFP status. Whatever the standard, $350 is a
lot of money to many millions of Americans. A person
working full-time at a minimum wage job will, with the
normal deductions, likely take home less than $350 in a
typical forty-hour week.
In commenting on the required payment of only a $30 fee
in a different context, Judge David Hamilton has noted that
while this amount “may not seem like much to the governing
class in our society, including lawyers and judges, it is for too
mortgage. No significant misrepresentation was made regarding
Escobedo’s expenses. Moreover, nothing in the record suggests Escobedo
had any equity in her home, a telling omission since, as Escobedo’s
counsel points out, large numbers of homes in Nevada were “under water”
in 2011. Finally, the evidence on which Apple Nevada’s flimsy
allegations rely is not properly before court. See United States v. Walker,
601 F.2d 1051, 1054 (9th Cir. 1979) (stating that the court will not permit
a party to augment the record and to present evidence to this court that
was not before the district court).
20 ESCOBEDO V. APPLE AMERICAN GROUP
many people a vital amount of cash.” Markadonatos v.
Village of Woodridge, 739 F.3d 984, 1000 (7th Cir. 2014)
(Hamilton, J., dissenting) (describing how a $30 fee
represented the “average allotment under the federal Food
Stamp program . . . to help feed an adult for a week” as well
as the wages for more than a half day of work under the
federal minimum wage), rehearing en banc granted, opinion
vacated, 760 F.3d 545 (7th Cir. 2014).
If we were to consider only the monies coming to
Escobedo herself, as set forth in her affidavit in support of her
IFP application, we would have no hesitation in concluding
that the magistrate judge’s denial of the application
constituted an abuse of discretion. Escobedo was plainly
indigent, and her application should have been allowed. Even
taking into account the income of both Escobedo and her
husband—assuming the husband’s income was properly
assessed, which for the reasons set forth below we find it was
not—the magistrate judge’s ruling represented, at best, the
outer boundary of stringency. Including Escobedo’s
husband’s income with hers, the filing fee would still be
twenty-six percent of Escobedo’s communal property share
of the family’s monthly income and thirteen percent of the
total monthly family income.
Apple Nevada, in defending the magistrate judge’s ruling,
suggests a benchmark of twenty percent of monthly
household income. Only when this percentage of available
funds is exceeded, it argues, should the IFP petition be
allowed. Significantly, this benchmark comes from
28 U.S.C. § 1915(b)(1), which dictates that a court shall
calculate a prisoner’s monthly contribution toward payment
of the full filing fee based on twenty percent of the prisoner’s
monthly income while incarcerated. Twenty percent of
ESCOBEDO V. APPLE AMERICAN GROUP 21
Escobedo’s household income (including all her husband’s
income) is above the $350 filing fee, a fact that Apple says
supported denial of the application.
The simple response to this contention is that prisoners
have limited overhead. Though twenty percent may be an
appropriate measure for a person who is incarcerated, it is
inappropriate for someone like Escobedo, who must pay for
the roof over her head and the food on her table or go without
shelter and sustenance. See Olivares v. Marshall, 59 F.3d
109, 112 (9th Cir. 1995) (recognizing that district courts may
consider a prisoner’s choice in how to spend money as he has
many amenities “furnished by the prison,” while cautioning
that financial circumstances must be re-evaluated upon
parole).
The question whether Escobedo’s husband’s social
security income should have been included in the evaluation
of the IFP application would be difficult under any
circumstances. Here, the question is unanswerable due to
omissions in the record that should have been explored by the
magistrate judge at the IFP hearing. It is true, of course, that
spouses often share their respective incomes. In such a case
it might be appropriate to consider a spouse’s income as part
of the analysis leading to the ruling on the IFP application.
In many cases, however, the marital arrangement may, for
good reason, not include sharing income, or a spouse will
have his or her own expenses (child support, say, for children
of a prior marriage) with little or nothing left over to share.
For any number of reasons, one spouse’s funds may simply
not be available to the other spouse. See Lee v. McDonald’s
Corp., 231 F.3d 456, 459 (8th Cir. 2000) (remanding for
reassessment of the plaintiff’s ability to pay court fees
22 ESCOBEDO V. APPLE AMERICAN GROUP
“excluding those assets to which [the plaintiff] has no legal
entitlement”).
None of that was explored here. Given this, it was an
abuse of discretion for the magistrate judge to include
Escobedo’s husband’s income in the calculation of whether
she could afford the filing fee. While the magistrate judge
was entitled to consider what access Escobedo had to other
assets, see McQuade, 647 F.2d at 940 (stating that it is
“within the court’s discretion to make a factual inquiry” into
a claim of poverty), it cut off the inquiry too soon. If
Escobedo’s husband’s assets were to be weighed, so too
should his expenses and other liabilities. See Alexander,
9 F.3d at 1450 (remanding to give plaintiff the opportunity to
explain the sudden depletion of his account).
III. CONCLUSION
Escobedo’s complaint was filed for purposes of the statute
of limitations when she delivered it to the clerk’s office along
with her IFP application. Since it was filed on time, it should
not have been dismissed for violation of the ninety-day
statute of limitations. Moreover, the magistrate judge’s
ruling denying the IFP application lacked adequate
foundation. Where a court wishes to rely on the income or
assets of a litigant’s spouse to assess eligibility for IFP status,
a reasonable inquiry into the actual availability of the
spouse’s assets must be made. We reverse and remand to the
district court for further proceedings consistent with this
opinion.
REVERSED and REMANDED.