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John Duran v. City of Porterville

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 9, 2012

JOHN DURAN,
PLAINTIFF,
v.
CITY OF PORTERVILLE
DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff John Duran is proceeding pro se in this civil action, having filed a complaint on July 30, 2012. (Doc. 1). That same date, he submitted an application to proceed in forma pauperis pursuant to Title 28 of the United States Code section 1915. (Doc. 2).

Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that includes a statement of all assets the person possesses, demonstrating he or she is unable to pay such costs or give such security. See 28 U.S.C. § 1915(a)(1). When reviewing a motion filed pursuant to § 1915(a), the court examines whether the statements in the affidavit satisfy the requirement of poverty. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir.2004). While § 1915(a) does not require a litigant to demonstrate absolute destitution, the applicant must nonetheless show that she is "unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a). Motions to proceed in forma pauperis are addressed to the sound discretion of the District Court. United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981), cert. denied, 455 U.S. 958, 102 S.Ct. 1470, 71 L.Ed.2d 677 (1982). Where the moving party fails to establish poverty, it is within the discretion of the court to deny the motion to proceed in forma pauperis. Id.

A review of the application reveals that Plaintiff is currently retired. Plaintiff's gross retirement income is $1,585.00 per month. John Duran also receives approximately $448.00 a month in social security benefits. He has not produced information about available savings. His monthly expenses are approximately $1,570 and includes, a $639 mortgage payment, $150 in food expenses, $380.00 for utilities, and $300.00 for miscellaneous bills.

Given the above, Plaintiff Duran's gross income is approximately $2,033.00 monthly which is $24,396.00 annually ($2,033.00.00 x 12). The federal poverty guidelines provide that a annual salary greater than $11,170.00 for a family of one does not fall below the poverty line. (See http://aspe.hhs.gov/poverty/12poverty.shtml.) The calculation is made based upon gross income. (See http://www.census.gov/hhes/www/poverty/about/overview/measure.html.). Therefore, this Court finds Plaintiff is not entitled to proceed without prepayment of the $350.00 filing fee.

ORDER

For the foregoing reasons, Plaintiff's Application to Proceed Without Prepayment of Fees is DENIED. As a result, Plaintiff shall pay the filing fee of $350.00 no later than November 9, 2012, in order to proceed with this action. Failure to comply with this Order will result in the dismissal of this action.

IT IS SO ORDERED.

20121009

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