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Martinez v. Rodriguez

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


September 15, 2010

GILBERT S. MARTINEZ, PLAINTIFF,
v.
YOLANDA RODRIGUEZ, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a county inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed an in forma pauperis application in which he states that he owns two houses valued at $2,743,500 and $610,000, respectively; two cars valued at $107,000 and $47,000, respectively; and a motorbike valued at $87,000. He claims to have cash in excess of $3,000,000. In sum, plaintiff claims to own property whose approximate total worth is over $6.5 million.

Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action "without prepayment of fees or security therefor" by an individual who submits an affidavit evidencing an inability to pay such fees or give security therefor. 28 U.S.C. § 1915(a). Plaintiff has made an inadequate showing of indigency in the affidavit before the court. The undersigned will therefore recommend that plaintiff's motion to proceed in forma pauperis be denied, and that, within twenty-eight days of such denial, plaintiff be required to submit the appropriate filing fee to the Clerk of the Court. Plaintiff is cautioned that failure to pay the fee will result in a recommendation that the instant action be dismissed without prejudice.

Plaintiff has also filed a motion requesting service on the defendant. As plaintiff has not yet paid the filing fee to commence an action and his complaint has not yet been determined to state a colorable claim under 42 U.S.C. § 1983, the motion is premature.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for service (Doc. No. 6) is denied.

Also, IT IS HEREBY RECOMMENDED that plaintiff's motion to proceed in forma pauperis be denied, and that plaintiff be ordered to submit the appropriate filing fee within twenty-eight days from the date of the order denying plaintiff's motion.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is 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).

20100915

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