Wolf v. Federal Government of the United States of America

Filing 5

ORDER REASSIGNING CASE AND RECOMMENDING THAT APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND CASE BE DISMISSED. Signed by Judge Richard Seeborg on 1/23/09. (rssec, COURT STAFF) (Filed on 1/23/2009)

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1 2 3 4 5 6 7 8 9 10 STEVE J. WOLF, v. Plaintiff, NO. C 09-0173 RS ORDER REASSIGNING CASE AND RECOMMENDING THAT APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND CASE BE DISMISSED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION *E-FILED 1/23/09* United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. FEDERAL GOVERNMENT OF THE UNITED STATES OF AMERICA Defendant. / Motion to Proceed In Forma Pauperis Plaintiff Steve Wolf filed a complaint as well as an application to proceed in forma pauperis. Pursuant to 28 U.S.C. 1915(a)(1), the court may authorize the commencement of an action "without prepayment of fees" by a person who submits an affidavit of poverty, indicating that the affiant is "unable to pay such fees." Upon approval of the application, the court allows the action to proceed without payment of a filing fee, and service of process is made by "officers of the court" at public expense. 28 U.S.C. 1915(c)-(d). Wolf states that he is employed by the federal government in "space" and has not been paid for nine years. He receives $11.60 monthly in Social Security benefits and $7.51 monthly in pension payments for a total monthly income of $19.11. Wolf lists three dependents (his wife and two children) who receive $623.20 per month from him. He lists no debts and his only claimed monthly expense is rent of $11.60. Plaintiff later claims that he does not pay rent, utilities, or a mortgage. 1 1 2 3 4 5 6 7 8 9 10 He asserts that he has no monthly expenses for food or clothing. Finally, Wolf lists a bank account with a present balance of $50. Thus, Wolf's monthly income of $19.11 exceeds his claimed expenses by more than $600. Wolf, however, discloses no credit card debts or any other accruing liabilities that would explain the apparent discrepancy between his claimed lack of income and his acknowledged expenses. Accordingly, even though his income is limited, Wolf's affidavit in support of his application to proceed in forma pauperis is insufficient to support the conclusion that he is an individual "unable to pay" the filing fee and the costs of service. Under Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 1988), a magistrate judge "has no authority to issue a dispositive order denying in forma pauperis status" absent the consent of the parties under 28 U.S.C. 636(c). Furthermore, the consent of the named defendant may not be solicited, because service of process will not be effectuated until in forma pauperis status is granted or the filing fee is paid. Even were Wolf to consent to the jurisdiction of the undersigned Magistrate Judge, the consent of the defendant is essential to the court's power to enter an order denying in forma pauperis status. Hajek v. Burlington N. R.R. Co., 186 F.3d 1105, 1107-08 (9th Cir. 1999) (appellant who had expressly consented to jurisdiction of magistrate judge not estopped from challenging jurisdiction based upon failure of appellee to consent). Therefore, while it is the conclusion of the undersigned Magistrate Judge that Wolf fails to demonstrate eligibility for in forma pauperis status, the order determining his application to proceed in forma pauperis must be ruled upon by a District Judge. This case is reassigned to a District Judge with the recommendation that Wolf's application to proceed in forma pauperis be denied. B. The Complaint Appears to be Frivolous In addition to permitting an action to proceed without the prepayment of a filing fee, 28 U.S.C. 1915 also provides that the court shall dismiss a case if, at any time, the court determines that such case is frivolous. See 28 U.S.C. 1915(e)(2)(B)(i). Here, Wolf's complaint consists of one sentence that states: "Iv'e been building a company for nine years[.] I work 18 to 20 hours everyday, I can not find my assets." The one page complaint further includes a color photo of a comet. While Wolf may feel that the federal government has not paid him any wages for his work in "space," he fails to set forth any claim upon which the court could award relief. For these reasons, it 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 appears that Wolf's case is frivolous and may, therefore, be dismissed. Accordingly, this case is reassigned to a District Judge with the recommendation that Wolf's action be dismissed. IT IS SO ORDERED. Dated: January 23, 2009 RICHARD SEEBORG United States Magistrate Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER REASSIGNING CASE AND RECOMMENDING THAT APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND CASE BE DISMISSED C 09-0173 RS 3

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