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Lopez v. Johnson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 26, 2010

SOPHIA LOPEZ, PLAINTIFF,
v.
MARTHA JOHNSON, AND RENEE RICHARDSON, DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO FILE AMENDED AFFIDAVIT SUPPORTING HER REQUEST TO PROCEED IN FORMA PAUPERIS ORDER REQUIRING CLERK TO FILE MOTION TO PROCEED IN FORMA PAUPERIS ATTACHED AS EXHIBIT A TO PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 12)

Plaintiff is proceeding pro se and with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also seeks to proceed in forma pauperis. (Docs. 6 and 12 (Ex. A)). Although this case was previously dismissed and judgment entered, on April 19, 2010, the Court granted Plaintiff's motion for relief from the judgment, vacated the dismissal of her action, and directed that the Magistrate Judge act on her application to proceed in forma pauperis. (Doc. 13).

Upon remand, the Court notes discrepancies between the application filed by Plaintiff on January 7, 2010, (Doc. 6), and the application attached to her motion for relief from the judgment filed on April 9, 2010. (Doc. 12, Ex. A). For instance, in her application filed on January 7, 2010, Plaintiff stated that she had no income but that her husband received $872 in monthly SSI benefits. (Doc. 6 at 2, 4). In addition, Plaintiff stated that she received $400 a month from "California Welfare for our four children." (Doc. 6 at 2). She further stated that all of her children, including a "recently returned" 19-year old, "are dependent upon my husband and I for support." (Id. at 3).

Conversely, in an application attached to the motion for relief from judgment, Plaintiff again states that she has no income or assets, but now states that she receives $533 a month in state welfare payments for her "two minor children." (Doc. 12, Ex. A at 2). In addition, she now states that her husband receives "&65 monthly" in disability payments from the Social Security Administration. (Id., Ex. A at 3). She makes no mention of the two other children listed in her January 10, 2010 affidavit and application, in particular the "recently returned" 19-year old she previously included as a dependant. (See id.)

In light of these unexplained inconsistencies, the Court will direct that Plaintiff file a new application and supporting affidavit to proceed in forma pauperis. Plaintiff will clarify these discrepancies by clearly listing her husband's monthly income and whether she is supported by that income, the total amount and frequency (monthly or otherwise) that she receives in state welfare payments for her dependant children, and any other income and/or assets she or her husband possess and, as required by question 3 of the Application to Proceed Without Prepayment of Fees and Affidavit, Plaintiff will outline the amount of money that she "expects [she] will continue to receive."

Finally, Plaintiff is ordered to clarify the number of children that are dependant upon her and her husband for financial support. If any of her dependant children are 18 years of age or older, she is ordered to explain why they are dependant upon her for support, whether they actually live in the home and whether they contribute to the household expenses. See Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 339 (1948); see also Monti v. McKeon, 600 F.Supp. 112, 114 (D. Conn. 1984) ("in ruling on motions to proceed in forma pauperis, . . . courts have considered the income of interested persons, such as spouses and parents, in evaluating the funds available to the movant . . . If plaintiff is supported by her spouse, and her spouse is financially able to pay the costs of this appeal, it follows that the plaintiff's own lack of funds will not prevent her from gaining access to the courts.")

Accordingly, within ten days of service of this order, Plaintiff is directed to file a new application and affidavit, signed under penalty of perjury, containing the information outlined in the body of this order. Plaintiff is admonished that failure to comply with this order may result in denial of her motion to proceed in forma pauperis.

IT IS SO ORDERED.

20100426

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