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Anderson v. State

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 27, 2010

LISA ANDERSON; ELISE J. ANDERSON, PLAINTIFFS,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER: DENYING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] DENYING REQUEST FOR APPOINTMENT OF COUNSEL AS MOOT [Doc. No. 3]

On October 26, 2010 plaintiffs Lisa Anderson and her daughter Elise J. Anderson filed a pro se complaint alleging "discrimination by public social services." [Doc. No. 1.] Only Lisa Anderson signed the complaint. Along with the complaint, Lisa also submitted a motion to proceed in forma pauperis ("IFP") [Doc. No. 2], and a request for appointment of counsel [Doc. No. 3]. Plaintiff Elise did not submit a request to proceed IFP, nor did she join Lisa's request for appointment of counsel.*fn1

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. See 28 U.S.C. § 1914(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). 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 addition, although only one filing fee needs to be paid per case, if multiple plaintiffs seek to proceed in forma pauperis, each plaintiff must qualify for IFP status.

In Plaintiff Lisa's IFP affidavit, she states that she is unemployed and currently receives social security benefits in the amount of $929 per month. [Doc. No. 2.] Lisa asserts she does not have any assets or other sources of income, and lists student loan debt of $4,000. [Id.] Although not part of her IFP motion, the Court notes that Lisa indicates she pays $560 per month for rent in her request for appointment of counsel. [Doc. No. 3.]

A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). The affidavit submitted by Lisa in support of her motion to proceed IFP does not demonstrate that she lacks the financial resources or assets to pay the costs of commencing this action.

Lisa states in her affidavit that she receives $929 per month in social security benefits. Lisa identifies a debt obligation of $4,000 in student loans, but she does not indicate how much she pays toward this debt (if anything) per month. In addition, Lisa's request for appointment of counsel states she pays $560 per month for rent, but this information is not included in her motion to proceed IFP. The Court finds that Lisa's pending IFP motion does not present a full and accurate picture of her financial status. Accordingly, the Court cannot determine if Lisa is indigent within the meaning of the IFP statute and therefore DENIES her motion to proceed IFP without prejudice.

If Lisa wishes to proceed with this action, she must file an amended complaint and pay the $350 filing fee, or submit a renewed motion to proceed in forma pauperis, on or before November 16, 2010. If Plaintiff Elise intends to represent herself in this action, she must file her own motion to proceed in forma pauperis and sign the amended complaint on her own behalf, on or before November 16, 2010.*fn2

Lastly, as indicated above, Lisa also submitted a request for appointment of counsel. In light of the dismissal of Plaintiffs' complaint, the Court DENIES this request as moot.

IT IS SO ORDERED.


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