UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 3, 2008
WILLIAM H. CARTER, PLAINTIFF,
COUNTRY WIDE MORTGAGE, DEFENDANT.
The opinion of the court was delivered by: Hayes, Judge
ORDER DENYING PLAINTIFF'S SECOND MOTION TO PROCEED IN FORMA PAUPERIS
DISCUSSION & ORDER
Pending before the Court is Plaintiff's second motion to proceed in forma pauperis. (Doc. # 4).
On December 13, 2007, Plaintiff William H. Carter filed a Complaint against Defendant Countrywide Home Mortgage accompanied with a motion to proceed in forma pauperis. (Docs. # 1, 2). On December 18, 2007, the Court denied Plaintiff's motion to proceed in forma pauperis and required that Plaintiff either (1) pay the requisite filing fee, or (2) submit a more detailed motion to proceed in forma pauperis. (Doc. # 3). On December 21, 2007, Plaintiff filed a second motion to proceed in forma pauperis. (Doc. # 4).
I. Motion to Proceed In Forma Pauperis
All parties instituting a civil action, suit, or proceeding in a district court of the United States, other than a petition for writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. § 1914(a).
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). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).
Plaintiff's second motion to proceed in forma pauperis is identical to his first, except that Plaintiff notes in his second motion that he is in "survival mode" and that all of his property "is in foreclosure." (Doc. # 5). Plaintiff states that he is still not employed, but receives $1,650.00 per/month in benefits from the City of San Diego and the San Diego Unified School District. Plaintiff reiterates that he has $300.00 in two separate bank accounts and owns a 1992 LEXUS automobile. Finally, Plaintiff states that he supports Kristen Carter and has $43,000 in student loan and credit card debt.
After considering Plaintiff's motion and the accompanying affidavit, the Court determines that Plaintiff can afford to pay the filing fee in this case. Plaintiff has sufficient monthly income and assets to pay the required $350.00, and Plaintiff's affidavit does not set forth facts which would entitle him to proceed in forma pauperis. In addition, Plaintiff fails to (a) list the amount of his take home salary during his last period of employment, (b) indicate how much he contributes to support Kristen Carter, and (c) detail any monthly expenses, and in particular, his monthly contribution to credit and student loan debt. The Court concludes that Plaintiff is not eligible to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
Plaintiff's motion to proceed in forma pauperis (Doc. # 4) is DENIED without prejudice.
Plaintiff shall, on or before Friday, February 22, 2008, either (1) pay the requisite $350.00 filing fee, or (2) submit a more detailed and comprehensive motion to proceed in forma pauperis. If Plaintiff fails to submit payment or an amended motion to proceed in forma pauperis on or before February 22, 2008, the Court will close this case.
IT IS SO ORDERED.
WILLIAM Q. HAYES United States District Judge
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