Bankruptcy No. 09-08919-B7 Adversary No. 10-90142-B7
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS [doc. #19]
David Folsom moves to proceed in forma pauperis on appeal. Under Rule 24(a)(1) of the Federal Rules of Appellate Procedure, a "a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court." Also, [t]he party must attach an affidavit
(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal. . R. APP. PROC. 24(a)(1).
Having reviewed the affidavit attached to Folsom's motion, the Court finds that he has failed to demonstrate his inability to pay or to give security for fees and costs.
The benefit of proceeding IFP is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). 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. U.S., 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 ). "[T]he 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 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
Folsom indicates that his average monthly amount of money received during the past 12 months and the amount expected next month is $2,300.00. He also states that his total monthly expenses are $985.00. Folsom's spouse anticipates receiving $5,900.00 next month and having expenses of $5,800.00. The affidavit also shows the value of real estate in the amounts of $590,000 and $350,000.00.
Under these facts, the Court is not persuaded that Folsom is unable to pay the appellate filing fee. Accordingly, Folsom's motion to proceed in forma pauperis on appeal is DENIED.
COPY TO: HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE ALL COUNSEL/PARTIES
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