The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER (1) DENYING WITHOUT PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS; (2) DIRECTING PLAINTIFF TO PAY THE FILING FEE; AND (3) DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL
On June 17, 2010, Plaintiff Lamar Ellis, proceeding pro se, filed a complaint in this action against Defendants Bernard Madoff, Investment Securities LLC, Pioneer Investment Firm, Amsouth Bank, Regions Bank, Deposit Guaranty National Bank, United States Securities and Exchange Commission, Thadarine McIntosh, Moody Rating Agency, Fitch Rating Ltd., and Standard and Poor's Rating Agency, alleging that Defendants traded Plaintiffs' assets without permission, which resulted in a $13,000,000,000 loss to Plaintiffs.*fn1 (Doc. No. 1.) Plaintiff Lamar Ellis also filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel. (Doc. Nos. 2 & 3.) For the following reasons, the Court DENIES Plaintiff's motion to proceed in forma pauperis, DENIES the motion for appointment of counsel, and directs Plaintiff to pay the court filing fee.
I. Motion to Proceed in Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350.00 See 28 U.S.C. § 1915(a). 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). SeeRodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The benefit of proceeding in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). As 28 U.S.C. § 1915(a)(1) states, in part:
Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor.
A petitioner need not "be absolutely destitute to enjoy the benefit of this statute."
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960), cert. denied, 364 U.S. 896 (1960). He must, however, demonstrate his poverty with "some particularity, definiteness, and certainty."
United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam).
The Court notes that the complaint names as Defendants, among others, Bernard Madoff and various investment entities. (Doc. No. 1.) Plaintiff has alleged that he and his co-Plaintiffs suffered a loss in the amount of $13 billion dollars. (Id.) However, in this case, after reviewing Plaintiff Lamar Ellis's affidavit, the Court concludes that Plaintiff has not made an adequate showing that he is unable to pay the filing fee.*fn2 (Doc. No. 2.) Plaintiff Lamar Ellis is not incarcerated, and currently receives a total of $4,262.00 per month in the form of social security, civil service disability, and VA disability payments. (Id. at 1-2.) Plaintiff's affidavit also indicates that his checking account balance is approximately $1100.00. (Id. at 2.) Under these facts, the Court is not persuaded that Plaintiff Lamar Ellis is unable to pay the filing fee from his available funds. Accordingly, the Court DENIES without prejudice Plaintiff's motion for leave to proceed in forma pauperis, and directs Plaintiff to pay the $350.00 filing fee.
II. Motion to Appoint Counsel
In an in forma pauperis action, a district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The decision whether to appoint counsel is within the discretion of the court and is "granted only in exceptional circumstances." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). In exercising its discretion, the court must consider three factors: "(1) the plaintiff's financial resources, (2) the efforts made by plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1318 ...