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JORDAN v. POTTER

United States District Court, S.D. California


December 6, 2005.

CHARLES R. JORDAN Plaintiff,
v.
JOHN POTTER, Postmaster General of the United States Defendant.

The opinion of the court was delivered by: THOMAS WHELAN, District Judge

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS

On December 2, 2005 Plaintiff Charles Jordan ("Plaintiff") commenced this employment discrimination action against John Potter in his capacity as Postmaster General of the United States ("Defendant"). Plaintiff now seeks in forma pauperis status. For the reasons outlined below, the Court DENIES Plaintiff's request.

The determination of indigencyfalls within the district court's discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 506 U.S. 194 (1993) ("Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency.").

  It is well-settled that a party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), "an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs . . . and still be able to provide himself and dependents with the necessities of life." Id. at 339. At the same time, however, "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

  District courts therefore tend to reject in forma pauperis applications where the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (in forma pauperis application denied: "plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action."). Moreover, the facts as to the affiant's poverty must be stated "with some particularity, definiteness, and certainty." See United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam) (quotations omitted).

  Having read and considered the papers submitted, the Court finds that Plaintiff has failed to meet the requirements for in forma pauperis status under 28 U.S.C. § 1915. Plaintiff's application establishes that he receives $2,300 a month in "VA" benefits as well as $64 a month in social security benefits. Plaintiff has $40 in his checking account, owns an un-financed 2002 Toyota Tacoma and a home in Oceanside, California that Plaintiff values at $112,000. Plaintiff's application lists monthly debts, including "lights, gas, water, car ins., mortgage, clothing, food," but does not identify the monthly amount he spends on these expenses. Plaintiff also lists as a dependent his wife, who he asserts is totally disabled, but does not provide any information regarding amounts he spends to care for her. On the limited record before the Court, Plaintiff has failed to establish that paying the court filing fees would impair his ability to obtain the necessities of life. Adkins, 335 U.S. at 339. Accordingly, the Court DENIES Plaintiff's application to proceed in forma pauperis without prejudice.

  In light of this determination, the Court DISMISSES Plaintiff's Complaint without prejudice and with leave to amend. Plaintiff shall have until January 3, 2006 to reinstate this case by (1) paying the $250 filing fee or submitting an amended IFP application and (2) filing a First Amended Complaint. Plaintiff is advised that any failure to meet either of these requirements may cause the termination of his case without further leave to amend.

  IT IS SO ORDERED.

20051206

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