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Alvarez v. Napolitano


November 12, 2009


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


HAYES, Judge

The matter before the Court is Petitioner Luis Madrigal Alvarez's Motion for Leave to Proceed In Forma Pauperis (Doc. # 3).


On October 23, 2009, Petitioner filed his Petition for Writ of Mandamus (Doc. # 1). On October 29, 2009, the Court dismissed the action sua sponte without prejudice for failure to pay the $350 filing fee or to file a Motion to Proceed In Forma Pauperis (Doc. # 2). On November 3, 2009, Petitioner filed his Motion to Proceed In Forma Pauperis accompanied by a declaration about his financial circumstances (Doc. # 3).

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).

In his accompanying declaration, Petitioner states that he is not employed. Petitioner states he was last employed in late 2006, earning about $480.00 per week (Doc. # 3 at 2). In the past twelve months, Petitioner has not received any income. Id. He has a negative balance in his checking account, no savings, and does not own an automobile. Id. He owes his sister $1500.00 for paying his immigration bond. Id. He is supported by his sister because he does not currently have authorization to work in this country. Id.


After considering Petitioner's motion and the accompanying affidavit, the Court concludes that Petitioner is entitled to proceed in forma pauperis. Accordingly, Petitioner's Motion to Proceed In Forma Pauperis (Doc. # 3) is GRANTED. The Clerk of the Court shall file the complaint without prepayment of the filing fee.

The Clerk shall issue the summons, provide Petitioner with a certified copy of both this Order and his Complaint, and forward them to Petitioner along with a blank U.S. Marshal Form 285 for each Respondent named in his Complaint. Petitioner shall complete the Form 285s and forward them to the United States Marshal. The U.S. Marshal serve a copy of the Complaint and summons upon Respondent as directed by Petitioner on each U.S. Marshal Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(2).

Petitioner shall serve upon Respondent or, if appearance has been entered by counsel, upon Respondent's counsel, a copy of every further pleading or other document submitted for consideration of the Court. Petitioner shall include with the original paper to be filed with the Clerk of the Court a Certificate of Service stating the manner in which a true and correct copy of any document was served on Respondent, or counsel for Respondent, and the date of service. Any document received be the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.


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