United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief District Judge United States District
before the Court is Appellant and Debtor Praveen Kevin
Khurana's Motion to Waive Filing Fee on Appeal. (Dkt. 1).
For the reasons explained below, the Court will deny the
motion without prejudice.
2016, Khurana appealed three orders entered by the bankruptcy
court: (1) an order denying his motion to abandon; (2) an
order denying his conditional motion to transfer; and (3) an
order disallowing his claim of exemption. Shortly thereafter,
Khurana filed a motion to waive the appellate filing fee,
along with an affidavit supporting that motion.
bankruptcy court determined it could not rule on
Khurana's motion to proceed in forma pauperis (IFP)
because it is not a “court of the United States”
as defined by 28 U.S.C. § 451. See generally
Perroton v. Gray (In re Perroton), 958 F.2d 889, 896
(9thCir. 1992). It therefore referred the motion
to this Court for a ruling.
courts may 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 and demonstrates that he or she is unable to pay
such costs or give such security. See 28 U.S.C.
§ 1915(a)(1). “[A]n affidavit is sufficient which
states that one cannot because of [ ] poverty pay or give
security for the costs and still be able to provide himself
and dependents with the necessities of life.”
Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948) (internal quotations omitted); 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)). 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 or
she is “unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
IFP application is difficult to decipher, mainly because he
used a form affidavit, but he did not fill it out carefully
or completely. For example, in the sections of the form that
ask about sources of income, Khurana indicates that his
average monthly employment income during the past 12
months is “$3, 842 per annum.”
Affidavit, Dkt. 1-1, at 2. So it is not entirely
clear if Khurana is saying he makes just $3, 842 per
year or - probably more likely - that he makes $3,
842 per month. In addition to this problem, Khurana
did not fill in various blanks throughout the form, including
those designed to inform the Court if he receives income from
sources other than employment.
for the moment, however, that Khurana is reporting that he
receives $3, 842 in employment income every month, then he is
well above the poverty threshold identified by the Department
of Health and Human Services. See 2016 HHS Poverty
(last visited Oct. 19, 2016) (indicating that the poverty
threshold for a one-person household in Idaho is $11, 880).
Khurana also reports that he has other assets, including two
pieces of real estate reportedly worth a combined total of
his income and assets, Khurana certainly has various debts
and expenses; after all, he sought bankruptcy protection.
Nevertheless, in the section of the IFP affidavit regarding
current expenses, Khurana says that every month, he pays $2,
986 related to “regular expenses for operation of
business, profession, or farm.” Affidavit,
Dkt. 1-1 (response to question 8). Khurana did not provide
any detail for these reported expenses, despite the
form's instruction to “attach [a] detailed
statement” for these sorts of expenses.
on this record, Khurana has failed to demonstrate poverty
“with some particularity, definiteness and
certainty.” United States v. McQuade, 647 F.2d
938, 940 (9th Cir.1981) (internal quotation marks omitted).
He therefore fails to qualify for IFP status under §
1915(a). Further, based on his likely income ($3, 842 per
month) and his reported assets, it seems quite unlikely that
Khurana has any chance of qualifying for IFP status. The
Court believes his best course of action would be to simply
pay the fee if he wishes to pursue the appeal. In an
abundance of caution, however, the Court will allow Khurana a
chance to file an amended affidavit supporting his motion.
Any such affidavit should detail Khurana's financial
situation with particularity, definiteness, and certainty.
ORDERED that Debtor and Appellant Praveen Kevin Khurana's
Motion to Waive Filing Fee on Appeal (Dkt. 1) is DENIED
WITHOUT PREJUDICE. Within 21 days of this Order, Khurana may
file a supplemental affidavit supporting his motion for IFP
status. Failure to file a supplemental affidavit will ...