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Nichols v. Sacramento

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


June 15, 2010

JOHN NICHOLS, AKA JACK NICHOLS, PLAINTIFF,
v.
SACRAMENTO, CHERYL CRESON, STEVEN PEDRETTI, KEITH FLOYD, GEORGIA COCHRAN, CARL MOSHER, THOR LUDE, HAROLD BIXLER, AND JOHN HALLIMORE, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR PERMISSION TO APPEAL IN COUNTY OF FORMA PAUPERIS

Plaintiff John Nichols ("Plaintiff") moves for permission to appeal the May 3, 2010 judgment in forma pauperis.

I. BACKGROUND

Plaintiff's Complaint alleged four claims arising out of the termination of his employment with the County of Sacramento. The Court granted Defendants' motion for summary judgment, and judgment was entered accordingly on May 3, 2010. Plaintiff is appealing the judgment in pro per.

Plaintiff filed a Motion for Permission to Appeal In Forma Pauperis on June 1, 2010. The affidavit filed in support of said motion was unsigned and undated. Therefore, his motion was denied without prejudice. Plaintiff subsequently filed a memorandum in support of his motion, with a signed and dated affidavit attached.

II. DISCUSSION

A party may seek leave from the district court to proceed in forma pauperis on appeal under Federal Rule of Appellate Procedure 24 and 28 U.S.C. § 1915, when he or she is financially unable to pay the costs associated with the appeal. The requesting party must file a motion in the district court, accompanied by an affidavit that: 1) evidences in detail the party's inability to pay or give security for fees and costs; 2) claims an entitlement to redress; and 3) states the issues the party intends to present on appeal. Fed. R. App. P. 24(a)(1); 28 U.S.C. § 1915(a)(1).

To obtain leave to proceed in forma pauperis, the moving party must show his or her economic eligibility and that the appeal is not frivolous. See Coppedge v. U.S., 369 U.S. 438, 444-445 (1962), citing 28 U.S.C. § 1915(a). "For purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in law or fact." Sherman v. Yolo County Chief Prob. Officer, No. 02:06-cv-02415, 2008 WL 5282844, at * 1 (E.D. Cal. Dec. 18, 2008)(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989) and Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984)).

The determination of the moving party's indigency falls within the district court's discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 194 (1993). "One need not be absolutely destitute to obtain benefit of the in forma pauperis statute." Jefferson v. U.S., 277 F.2d at 725. "[A]n affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependants with the necessities of life." Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). Where the supporting affidavits comply with the statute, they should ordinarily be accepted, especially if unopposed. Jefferson v. U.S., 277 F.2d at 725.

Here, Plaintiff states that the issues he intends to present on appeal include,

By granting the defendants motion for summary judgment based upon procedural errors of Plaintiffs attorney, finding that submitted material facts were unsubstantiated, and not considering all facts submitted the order denied plaintiff his right to present his material facts to a jury of his [peers] as the ultimate finder of fact.... (Pl's Aff. 1.) Plaintiff explains his financial status declaring he is currently unemployed, and his unemployment insurance "will be exhausted next month." (Pl's Aff. ¶ 12.) Plaintiff also declares although he and his spouse own a home, they owe well more than its value. (Id.) Further, Plaintiff declares their monthly expenses will exceed their combined income by approximately $1,800 once Plaintiff's unemployment benefits cease. Plaintiff has shown his financial eligibility and that the appeal is not frivolous. Therefore, his motion to proceed on appeal in forma pauperis is granted.

20100615

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