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Jose J. Martinez, Elida Arias, Joseph D. Martinez, and Jesse L. Martinez v. Timothy Wester

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 21, 2013

JOSE J. MARTINEZ, ELIDA ARIAS, JOSEPH D. MARTINEZ, AND JESSE L. MARTINEZ,
PLAINTIFFS,
v.
TIMOTHY WESTER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFFS' MOTION TO PROCEED IN FORMA PAUPERIS (Docs. 5 and 6)

On March 11, 2013, the Court reviewed Plaintiffs' application to proceed in forma pauperis (without payment of filing fees) and found it to be confusing and lacking economic sense. Accordingly, the Court denied Plaintiffs' application, directing them to file a new application completely setting forth their income and expenses. On April 11, 2013, Plaintiffs, by their attorney Frank Michael Pacheco, responded by twice filing a new application to proceed in forma pauperis.

All four Plaintiffs are family members living at 6342 South Carpenter Road, Modesto, California. Plaintiffs Jose Martinez and Elida Arias are the parents of Plaintiffs Joseph D. Martinez (age 23) and Jesse L. Martinez (age 20). The family also includes two younger children, James Q. Martinez (age 15) and Julien A. Martinez (age 12).

Jose Martinez supports the entire family. Elida Arias is a full-time homemaker. Joseph Martinez is unemployed. Jesse Martinez is a full-time student.

Jose Martinez reports that he is employed as a truck driver earning $17.00 per hour. His working hours vary from time to time. In March 2013, he earned gross income of $3,754.95 plus an additional $267.00 payment from a former employer. He reports that his 2012 adjusted gross income was $22,458.00 (on average, $1871.50 per month). In the past twelve months, Martinez also received $8,975.00 (approximately $748.00 monthly) in rent from a mobile home that he owns.

Jose Martinez reports that the family owns their residence in Modesto, but that the value of the home is now less than the outstanding mortgage balance, which is estimated to be $260,000.00. He values the rented mobile home at $5000.00, stating that it is in poor repair. The family owns a 1999 BMW sedan and an inoperable 1995 BMW, together valued at $3810.00. Although Plaintiffs state that they have made no mortgage payments since November 2009, their reported monthly budget includes a mortgage payment of $1483.00. The family's remaining monthly expenses, including $125.00 monthly for property taxes, $100 for cable television, and $300.00 for cell phones, totals $2115.00. The family receives MediCal health insurance through an account in the name of Elida Arias.

Accordingly, for March 2013, Plaintiffs report gross salary of $3754.95, back wages of $267.00, and rental income of approximately $748.00, for total income of $4769.95. Omitting the mortgage payment, but assuming actual payment of property taxes, Plaintiffs' March income exceeded their expenses by $2654.95. Even if the Court were to include the amount owed for the mortgage (but admittedly not paid), Plaintiffs' March income exceeded their expenses by $1171.95.

Plaintiffs' application to proceed with this action in forma pauperis is hereby DENIED. Plaintiff are directed to pay the filing fee, in full, to the Clerk of Court on or before April 30, 2013. If the filing fee for this action has not been paid in full on or before April 30, 2013, this case shall be dismissed for failure to prosecute.

IT IS SO ORDERED.

20130421

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