Martinez v. Department of Human Resources

Filing 4

ORDER Denying 3 Motion to Proceed IFP, signed by Magistrate Judge Erica P. Grosjean on 11/30/17. Amended Motion for IFP or Filing Fee Due Within 14-Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GABRIEL MARTINEZ, 11 12 Case No. 1:17-cv-01577-DAD-EPG Plaintiff, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS v. (ECF No. 3) 13 14 DEPARTMENT OF HUMAN RESOURCES/EEOC, 15 Defendant. 16 17 Plaintiff Gabriel Martinez is proceeding pro se in this action. (ECF No. 1.) On November 18 27, 2017, Plaintiff submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 19 1915. (ECF No. 2.) 20 A civil action may proceed despite a failure to prepay the entire filing fee only if the 21 party initiating the action is granted leave to proceed in forma pauperis. See Rodriguez v. Cook, 22 169 F.3d 1176, 1177 (9th Cir. 1999). The decision whether to grant leave to proceed in forma 23 pauperis is in the sound discretion of the Court. See Calif. Men’s Colony v. Rowland, 939 F.2d 24 854, 858 (9th Cir. 1991) (“Section 1915 typically requires the reviewing court to exercise its 25 sound discretion in determining whether the affiant has satisfied the statute’s requirement of 26 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). “[T]here is no formula set forth by 27 statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 28 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). 1 1 In applying to proceed in forma pauperis, a party must submit an affidavit that “state[s] 2 the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” 3 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (“The right to proceed in forma 4 paupers is not an unqualified one. It is a privilege, rather than a right”). The party “need not be 5 absolutely destitute to obtain benefits of the in forma pauperis statute.” Id. at 725. Nevertheless, 6 the affidavit must show that the party “cannot because of his poverty pay or give security for the 7 costs and still be able to provide himself and dependents with the necessities of life.” Escobedo, 8 787 F.3d at 1235 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 9 Here, Plaintiff has failed to state the facts of his poverty with particularity, definiteness 10 and certainty. Plaintiff states that he received money in the past 12 months, but fails to describe 11 the sources of money or state the amount received. Plaintiff also states that he does have things 12 of value, but does not know the value of it at this time. These statements fail to reach the level of 13 particularity necessary for the Court to determine Plaintiff’s indigency. 14 Accordingly, IT IS HEREBY ORDERED that: 15 Plaintiff must either pay the filing fee or file an amended in forma pauperis application 16 within fourteen (14) days of the date of this Order. If Plaintiff files an amended application, he 17 must detail his assets and liabilities with particularity, definiteness and certainty to allow the 18 Court to determine whether he is unable to pay the filing fee. 19 No requests for extension will be granted without a showing of good cause. Failure 20 to timely comply with this order will result in a recommendation that this action be 21 dismissed. 22 23 24 IT IS SO ORDERED. Dated: November 30, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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