Jenkins v. Department of Veteran's Affairs

Filing 3

ORDER signed by Judge Lawrence J. O'Neill on 7/26/06 ORDERING 2 MOTION to PROCEED IN FORMA PAUPERIS filed by Horace L. Jenkins, is DENIED. Plaintiff to pay the $350.00 filing fee for this action by 8/25/2006. (Carter-Ford, R)

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(PS) Jenkins v. Department of Veteran's Affairs Doc. 3 Case 1:06-cv-00962-OWW-LJO 1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORACE LYNN JENKINS, Plaintiff, Document 3 Filed 07/27/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CASE NO. CV F 06-0962 OWW LJO ORDER TO PAY FILING FEE (Doc. 2.) UNITED STATES DEPARTMENT OF VETERAN'S AFFAIRS, Defendants. / On July 24, 2006, pro se plaintiff Horace Lynn Jenkins ("plaintiff") filed with this Court his Application to Proceed without Prepayment of Fees and Affidavit ("application") to request to proceed without prepayment of the $350 filing fee or costs under 28 U.S.C. 1915. Plaintiff's application indicates that he has more than $9,000 in cash, checking or savings, owns stocks and bonds valued at $5,300 and receives disability or workers' compensation in an amount not disclosed. Filing fees are addressed by 28 U.S.C. 1914(a) which provides the "clerk of each district court shall require the parties instituting any civil action, suit or proceeding, in such court . . . to pay a filing fee . . ." and which is $350 for civil actions in this Court. This Court's Local Rule 77-121(c) provides in pertinent part: "[T]he Clerk shall not file any paper, issue any process, or render any other service for which a fee is prescribed by statute or by the Judicial Conference of the United States unless the fee is prepaid." A person may be allowed to proceed with a civil action without paying a filing fee upon submission of an affidavit stating he/she is unable to pay such fee, the nature of the action and the belief 1 Case 1:06-cv-00962-OWW-LJO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Document 3 Filed 07/27/2006 Page 2 of 2 he/she is entitled to redress. 28 U.S.C. 1915(a)(1); Rowland v. California Men's Colony, 506 U.S. 194, 201, 113 S.Ct. 716, 720-721 (1993). The affidavit required under 28 U.S.C. 1915(a) has been described as an "allegation of poverty." Rowland, 506 U.S. at 203, 113 S.Ct. at 722. In Rowland, 506 U.S. at 203, 113 S.Ct. at 722, the United States Supreme Court noted in reference to an application for in forma pauperis status: Poverty, in its primary sense, is a human condition, to be "[w]anting in material riches or goods; lacking in the comforts of life; needy," Webster's New International Dictionary 1919 (2d ed. 1942) . . . As we first said in 1948, "[w]e think an affidavit is sufficient which states that one cannot because of his poverty 'pay or give security for the costs ... and still be able to provide' himself and dependents 'with the necessities of life.' " Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43. Plaintiff's application does not indicate that any other person is dependent upon him for support. He has assets and some form of income. Plaintiff is not poverty-stricken. If plaintiff is earnest in pursuing his claims, he appears to have the ability to pay the filing fee, waiver of which is reserved for the truly needy. Accordingly, on the basis of good cause, this Court: 1. 2. DENIES plaintiff's application to proceed without prepayment of fees; and ORDERS plaintiff, no later than August 25, 2006, to pay the $350 filing fee. Plaintiff is admonished that this Court will take no action regarding his claims until he pays the $350 filing fee and that this Court will dismiss this action if plaintiff fails to timely comply with this order. IT IS SO ORDERED. Dated: b9ed48 July 26, 2006 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 2

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