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Ross v. San Diego County

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 14, 2008

RANDE ROSS, PLAINTIFF,
v.
SAN DIEGO COUNTY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING THE ACTION

Plaintiff Rande Ross ("Plaintiff") filed the present action against the County of San Diego, the Sheriff's Department and a Deputy Sheriff on January 15, 2008. Plaintiff alleges that Defendants violated her rights under section 1983 of the Civil Rights Act and requests permission to proceed in forma pauperis. For the reasons below, the Court denies Plaintiff's request and dismisses the action without prejudice and with leave to re-open upon payment of the filing fee.

Plaintiff is not entitled to proceed the in forma pauperis. All parties instituting any civil , suit, or proceeding in a district court of the United States, except for an application for writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. § 1914. An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff 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). Under §1915(a), the court may authorize the commencement of an action without prepayment of fees if the plaintiff submits an affidavit, including a statement of all assets, showing that he is unable to pay the filing fee.

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). But "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or 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).

In the declaration submitted in support of his Motion to Proceed in Forma Pauperis, Plaintiff stated that she is unemployed and has been receiving disability insurance payments of approximately $2,100/month. (Plaintiff's Declaration in Support of Motion to Proceed In Forma Pauperis ("Decl."), at ¶3). Plaintiff also owns a car and a house. (Decl., at 6). Although she carries significant debt as well, she has not established her entitlement to the in forma pauperis status. Therefore Plaintiff's motion to proceed in forma pauperis is denied.

CONCLUSION

Plaintiff's Motion to Proceed In Forma Pauperis is DENIED. Accordingly, the Complaint is dismissed without prejudice and may be re-opened if the Plaintiff pays the required filing fee within 90 days of the date of this Order.

IT IS SO ORDERED.

20080214

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