Rojas et al v. Countywide Financial et al

Filing 6

ORDER Denying Plaintiffs' Motions to Proceed in Forma Pauperis 3 , 4 , and Directing Plaintiffs to Pay the Filing Fee, signed by District Judge Lawrence J. O'Neill on 9/11/12. 30-Day deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERMAN ROJAS, et al.,

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Plaintiffs,
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v.
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COUNTYWIDE FINANCIAL, et al.,
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Defendants.
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_____________________________________ )

Case No.: 1:12-cv-01393 LJO JLT
ORDER DENYING PLAINTIFFS’
MOTIONS TO PROCEED IN FORMA
PAUPERIS AND DIRECTING PLAINTIFFS
TO PAY THE FILING FEE
(Docs. 3-4)

Plaintiffs German Rojas and Tony Sickler (“Plaintiffs”) initiated this action by filing a

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complaint on August 24, 2012. (Doc. 1). Plaintiffs seek to proceed in forma pauperis, and filed

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separate motions to proceed without payment of the filing fee. (Docs. 3-4).

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As a general rule, all parties instituting any civil action, suit or proceeding in a United

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States District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may

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authorize the commencement of an action “without prepayment of fees and costs of security

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therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or

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give security therefor.” 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a

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failure to prepay the filing fee only if leave to proceed in forma pauperis is granted by the Court.

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See Rodriguez v. Cook, 169 F.3d 1178, 1177 (9th Cir. 1999).

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The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of
privilege and not a right; denial of an informa pauperis status does not violate the applicant’s
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right to due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984), citing Weller v.

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Dickson, 314 F.2d 598, 600 (9th Cir. 1963). In addition, the Court has broad discretion to grant

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or deny a motion to proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller,

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314 F.2d at 600-01. In making a determination, the Court “must be careful to avoid construing

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the statute so narrowly that a litigant is presented with a Hobson’s choice between eschewing a

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potentially meritorious claim or foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586

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F.Supp. 848, 850 (D.R.I. 1984).

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Here, Plaintiffs applications do not demonstrate an inability to pay the Court costs due to

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poverty. Both German Rojas and Tony Sickler report they are employed, and have a total income

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of more than $4,900 each month. (Doc. 3 at 1, Doc. 4 at 1). In addition, Mr. Sickler reported he

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has $800.00 in savings. (Doc. 3 at 3). Therefore, based upon their income and assets, Plaintiffs

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have failed to make an adequate showing of indigence and have not demonstrated that they have

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insufficient funds to pay the Court’s filing fee of $350.

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Accordingly, IT IS HEREBY ORDERED:

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1.

The motions to proceed in forma pauperis are DENIED; and

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2.

Plaintiffs ARE DIRECTED to pay the filing fee within 30 days of service of this

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order. If Plaintiffs fail to pay the filing fee, the Court will dismiss the action.

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IT IS SO ORDERED.
Dated:
66h44d

September 11, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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