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Randal De Hoog v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 7, 2013

RANDAL DE HOOG, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by an attorney, filed his complaint on February 7, 2013, without paying the applicable filing fee.*fn1 Instead, plaintiff filed an application to proceed in forma pauperis. (Dkt. No. 2.)

Plaintiff's declaration in support of his application to proceed in forma pauperis indicates that, as of April 26, 2012, he had received $26,103.86 in temporary disability payments and that he had "five weeks left" at approximately $4,000.00, after which he will have no income at all. (Dkt. No. 2.) However, he also states that he has $2,400.00 in a checking or savings account, that he owns $6,400.00 in stocks, and that he has a retirement account with $24,000.00. (Id.)

Pursuant to federal statute, a filing fee of $350 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action "without prepayment of fees or security therefor" by a person that is unable to pay such fees or provide security therefor. 28 U.S.C. § 1915(a)(1). While plaintiff may be experiencing financial difficulties and would prefer not to use certain assets to pay a court filing fee, plaintiff's declaration does not demonstrate that he is truly indigent and unable to pay the initial filing fee. Thus, plaintiff has made an inadequate showing of indigency. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993).

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's application to proceed in forma pauperis (dkt. no. 2) is denied without prejudice.

2. Within 28 days of the date of this order, plaintiff shall pay the applicable filing fee or file an amended application to proceed in forma pauperis that adequately explains why plaintiff is unable to pay the initial filing fee despite his assets outlined above. Plaintiff's failure to pay the filing fee or file an amended application by the above deadline will result in a recommendation that plaintiff's complaint be dismissed pursuant to Federal Rule of Civil Procedure 41(b), and shall also constitute plaintiff's consent to such involuntary dismissal.

IT IS SO ORDERED.


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