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Michelle Howard v. Peter Gonzalez; the Miracosta Community College District

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 29, 2011

MICHELLE HOWARD,
PLAINTIFF,
v.
PETER GONZALEZ; THE MIRACOSTA COMMUNITY COLLEGE DISTRICT,
DEFENDANTS.

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

ORDER DENYING IN FORMA PAUPERIS STATUS

On January 28, 2011, Michelle Howard, a non-prisoner proceeding pro se, filed a Motion to Proceed in forma pauperis [Doc. No. 2] of case number 3:11-cv-00184-AJB-WVG to this Court. Plaintiff submitted a declaration in support of a request to proceed in forma pauperis in accordance with 28 U.S.C. § 1915(a)(1) and Local Rule 3.2(a).

The Court finds that the Plaintiff'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 the petition. 28 U.S.C.A. § 1915. "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.1965). One need not be absolutely destitute to obtain benefits of statute dealing with proceed-in forma pauperis in federal courts. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948). The motion, however, must state facts as to affiant's poverty with some particularity, definiteness and certainty. Jefferson v. U.S., 277 F. 2d 723 (9th Cir. 1960).

The Plaintiff's motion to proceed in forma pauperis lacks merit because:

* Plaintiff receives $1100.00/monthly in child-support.

* Plaintiff receives $700.00/monthly in Low-Income Housing Assistance.

* Plaintiff owns a 1999 Malibu Chevy outright.

* Other than the complete support of the Plaintiff's child, no other debts or obligations owed.

* Plaintiff has failed to note any housing, transportation, utilities, or loan payments, or other regular monthly expenses.

* Plaintiff has not provided any evidence to prove efforts of employment.

It is under the Court's discretion to grant or deny permission to proceed in forma pauperis based on the Plaintiff's claim. 28 U.S.C. § 1915(e)(2). 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). It is advised that the Plaintiff submit a current revision of the short form "Application To Proceed In District Court Without Prepaying Fees or Costs" available on the United States Courts website.*fn1

In light of this information, IT IS HEREBY ORDERED that the Plaintiff's Motion to Proceed in forma pauperis is DENIED and the Complaint is DISMISSED without prejudice. Pursuant to this Order, however, Plaintiff is granted 30 days leave to pay the $350 filing fee required to maintain this action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding the Plaintiff's economic status.

IF PLAINTIFF CHOOSES TO FILE ADDITIONAL INFORMATION REGARDING HIS POVERTY, HE MUST ATTACH A COPY OF THIS ORDER.

IT IS SO ORDERED.


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