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William Joseph Hedgcoth v. Ken Elwer

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


July 5, 2011

WILLIAM JOSEPH HEDGCOTH, PLAINTIFF,
v.
KEN ELWER, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff requested authority under 28 U.S.C. § 1915 to proceed in this action in forma pauperis, and submitted an affidavit purporting to demonstrate that he is unable to prepay fees and costs or give security for them. Dckt. No. 2. However, because the affidavit was not signed or dated, on May 26, 2011, the undersigned issued an order directing plaintiff to file, within fourteen days, a further affidavit which is dated and signed under penalty of perjury.*fn1 Dckt. No. 3. The court stated that it would then resume consideration of plaintiff's application to proceed in forma pauperis.

The docket reveals that no further affidavit was filed. Therefore, the court finds that plaintiff has failed to demonstrate that he has insufficient assets to pay the filing fee and costs and provide the necessities of life for himself and his dependents. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (affidavit is sufficient if it represents that the litigant is "unable to pay for the court fees and costs, and to provide necessities for himself and his dependents") (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948)); see also Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (denying in forma pauperis status where applicant had a net income of approximately $20,000). Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's application to proceed in forma pauperis be DENIED, and that plaintiff be given thirty days in which to pay the filing fee of $350.00.

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, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

SO ORDERED.


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