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California Doe Father #1 v. William C. Vickery

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 7, 2011

CALIFORNIA DOE FATHER #1, PETITIONER/PLAINTIFF,
v.
WILLIAM C. VICKERY, IN HIS OFFICIAL CAPACITY AS ADMINISTRATIVE DIRECTOR OF THE COURTS, EARL H. MAAS III, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF SAN DIEGO, BARBARA PRUITT, IN HER OFFICIAL CAPACITY AS DIRECTOR OF FAMILY COURT SERVICES SAN DIEGO AND INDIVIDUALLY, CHERYL W. BRIERTON, IN HER OFFICIAL CAPACITY AS GENERAL COUNSEL FOR FAMILY COURT SERVICES SAN DIEGO AND INDIVIDUALLY, COUNTY OF SAN DIEGO, JANINE ALLVORD, IN HER OFFICIAL CAPACITY ASA CHILD PROTECTIVE SOCIAL WORKER AND INDIVIDUALLY, AND DOES 1-100, DEFENDANTS.

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

ORDER DENYING IN FORMA PAUPERIS STATUS

On August 5, 2011, California DOE Father #1 , a non-prisoner proceeding pro se, filed a Motion to Proceed in forma pauperis [Doc. No. 3] of case number 3:11-cv-01755-AJB-JMA 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 is not incarcerated.

* Plaintiff has a stated average income of $1925 per month.

* Plaintiff owns a vehicle.

* Plaintiff's listed debts and obligations do not rise to the level of poverty necessitated under 28 U.S.C. § 1915.

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). In light of this information, IT IS HEREBY OR- DERED 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.

IT IS SO ORDERED.

20111007

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