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Francis O. Biddle v. Michael J. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 7, 2011

FRANCIS O. BIDDLE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING IN FORMA PAUPERIS APPLICATION WITHOUT PREJUDICE AND GRANTING 30 DAYS TO PAY FILING FEES

On April 6, 2011, Plaintiff Francis O. Biddle ("Plaintiff") filed a complaint against Defendant Michael J. Astrue ("Defendant"). (Doc. No. 1.) Plaintiff also filed a motion to proceed in forma pauperis. (Doc. No. 2.)

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:

[A]ny 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 plaintiff 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).

The Court notes that Plaintiff receives $825.00 each month through Social Security and disability. (Doc. No. 2 at 2.) Plaintiff also has a combined balance of $4000.00 in checking and savings accounts. (Id.) Furthermore, Plaintiff owns an automobile vehicle and mobile home property, although the value of either is unknown. (Id. at 2-3.)

It appears Plaintiff can afford the $350.00 filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis. Petitioners must, no later than May 7, 2011, provide the Court with: (1) a copy of this Order together with the $350.00 filing fee; or (2) a copy of this Order together with adequate proof that Petitioners cannot pay the $350.00 filing fee.

IT IS SO ORDERED.

20110407

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