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Chukwuma E. Azubuko v. Judge Vanessa L. Bryant

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 14, 2011

CHUKWUMA E. AZUBUKO,
PLAINTIFF,
v.
JUDGE VANESSA L. BRYANT, IN INDIVIDUAL AND OFFICIAL CAPACITIES; JUDGE CHRISTOPHER F. DRONEY; JOHN JOHNSON, IN INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2]

On August 15, 2011, the Plaintiff, Chukwuma E Azubuko, a non-prisoner proceeding pro se, filed a Motion to Proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and Local Rule 3.2(a).

The Court finds that Azubuko's declaration of inability to pay costs or give security is insufficient to permit Plaintiff to proceed in forma pauperis. Permission to file a petition for writ of mandamus in forma pauperis will not be granted unless there is some merit in petition. 28 U.S.C.A. § 1915. The Plaintiff states having no take-home pay or wages, no ownership of real estate, and a total of $150.00 in a checking or savings account. The only other income noted in the past twelve months was $308 a family member received bi-weekly "from the DTA." Although the Plaintiff need not be absolutely destitute to proceed in forma pauperis in federal court, a motion to proceed in forma pauperis must state facts as to affiant's poverty with some particularity, definiteness and certainty. See 28 U.S.C.A. § 1915; Jefferson v. U.S., 277 F. 2d 723 (9th Cir. 1960). The Plaintiff's motion fails to state with particularity, definiteness and certainty an inability to pay costs or give security under 28 U.S.C. § 1914(a) because:

1. Plaintiff completed and submitted an outdated Application to Proceed in District Court Without Prepaying Fees or Costs. Revised form AO 240 (Rev.07/10) is available on the Court's website to allow the Plaintiff to provide necessary information to state a sufficient claim;

2. Plaintiff fails to state the current and future amount received from the family member receiving "$618.00 from the DTA - $308.00 - bi-weekly";

3. Plaintiff fails to state with particularity the amount contributed to dependents; and

4. Plaintiff does not list any other debts (current obligations, indicating amounts owed and to whom they are payable).

Without further evidence, the Court lacks specific facts to find that the Plaintiff is not able to pay the filing fee under 28 U.S.C. § 1914(a). In light of this information, IT IS HEREBY ORDERED that Azubuko's motion to proceed in forma pauperis be DENIED and the Complaint DISMISSED without prejudice. Pursuant to this Order, the Plaintiff is granted 30 days leave to pay $350.00 filing fee required to maintain this action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding economic status as set forth above. IF PLAINTIFF CHOOSES TO FILE ADDITIONAL INFORMATION REGARDING HIS POVERTY, HE MUST ATTACH A COPY OF THIS ORDER.

IT IS SO ORDERED.

20110914

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