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Poway Unified School District v. Stewart

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 14, 2007

POWAY UNIFIED SCHOOL DISTRICT, PLAINTIFF,
v.
LINDSEY STEWART, DEFENDANT.

The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL

HAYES, Judge:

Pending before the Court is Defendant's motion to proceed in forma pauperis on appeal. (Doc. # 21).

DISCUSSION & ORDER

All parties appealing a civil action, suit, or proceeding, must pay a filing fee to the district court. See 28 U.S.C. § 1917(a); FED. R. APP. P. 3. An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); Smith v. Johnson, 109 F.2d 152, 154 (9th Cir. 1940). "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3).

"To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). "It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis. Id; see also Jefferson v. United States, 277 F.2d 723, 724-725 (9th Cir. 1960).

In her accompanying affidavit, Defendant states that she is not employed, and has not been employed since June of 2005. Defendant currently receives $440.00 every two weeks in worker's compensation benefits, and she owns outright a 2002 Buick LeSabre. Defendant has $11.00 in a savings account, however, Defendant indicates that she owns no other assets. Defendant indicates that she has two dependents, but does indicate how much money she contributes to support them. Finally, Defendant indicates that she does not have any debts or other financial obligations.

After considering Defendant's motion and the accompanying affidavit, the Court determines that Defendant can afford to pay the filing costs associated with this appeal pursuant to 28 U.S.C. § 1915(a). The Court therefore DENIES Defendant's motion to proceed in forma pauperis. (Doc. # 21).

IT IS SO ORDERED.

20071114

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