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Cooper v. Simpson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 2, 2009

JOHHNY D. COOPER, SR., PLAINTIFF,
v.
ALAN M. SIMPSON, DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATIONS TO PROCEED IN FORMA PAUPERIS AND TO ORDER PLAINTIFF TO PAY THE FILING FEE OR SUFFER DISMISSAL OF THE ACTION FOR FAILURE TO FOLLOW COURT ORDERS

(DOCS. 3, 5, 7)

Plaintiff is proceeding pro se with a civil action.

The complaint was filed on April 6, 2009, and on the same date Plaintiff submitted an application to proceed in forma pauperis which was incomplete because although Plaintiff stated he received unemployment, he did not state the amount of money he received, and although he stated he had a savings, cash, or checking account, he stated that the total amount was nothing.

On April 28, 2009, the Court issued an order requiring Plaintiff either to pay the filing fee or submit a completed application to proceed in forma pauperis. In that order, the Court informed Plaintiff of the defects in his application to proceed in forma pauperis and of the necessity of having information concerning Plaintiff's financial status.

On April 30, 2009, Plaintiff again filed an incomplete application to proceed in forma pauperis. The application still failed to state the total amount of unemployment benefits received by Plaintiff, and it stated apparently inconsistent data concerning the account/s. Plaintiff provided no explanation for his failure to obey the Court's order by either paying the filing fee in full or submitting a completed application to proceed in forma pauperis.

On May 11, 2009, the Court issued and served an order requiring Plaintiff either to pay the filing fee or submit a completed application to proceed in forma pauperis. In that order, the Court informed Plaintiff of the defects in his application to proceed in forma pauperis and of the necessity of having information concerning Plaintiff's financial status.

On May 27, 2009, Plaintiff filed another application to proceed in forma pauperis in which he stated that Plaintiff received money from "f. any other sources" but did not describe the source and amount of money received and the amount expected to be received in the future. Thus, after having given Plaintiff multiple opportunities to comply with the Court's simple directions in order to assess Plaintiff's eligibility to proceed in forma pauperis, the Court is unable to proceed with the case because of Plaintiff multiple, unexplained failures to comply with the orders of the Court and to provide an adequate application.

Title 28 U.S.C. § 1915(a)(1) provides that any court of the United States may authorize the commencement, prosecution of defense of any civil or criminal suit, action, proceeding, or any appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees or give security therefor. Id.; Floyd v. United States Postal Service, 105 F.3d 274, 275-77 (6th Cir. 1997), modified on other grounds in Callihan v. Schneider, 178 F.3d 800, 801 (6th Cir. 1999). The affidavit should state the nature of the action, defense or appeal and the affiant's belief that the person is entitled to redress. 28 U.S.C. § 1915(a).

Because Plaintiff has repeatedly failed to provide the Court with the requested information, Plaintiff has failed to establish that he is entitled to proceed in forma pauperis. Any further efforts to obtain Plaintiff's compliance with the Court's orders concerning financial information would be futile.

Accordingly, it IS RECOMMENDED that Plaintiff's applications to proceed in forma pauperis BE DENIED, that Plaintiff BE DIRECTED to pay the $350.00 filing fee within twenty days of service of the order adopting these findings and recommendations, and that Plaintiff BE INFORMED that a failure to comply with the Court's order to pay the filing fee will result in the dismissal or termination of the action.

This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20090602

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