Folsom et al v. Davis

Filing 22

ORDER denying 19 Motion for Leave to Appeal in forma pauperis. Signed by Judge M. James Lorenz on 8/22/2011. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Debtor.
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DAVID FOLSOM; PAMELA
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BRODWOLF-FOLSOM,
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Appellants,
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v.
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GERALD H. DAVIS, Chapter 7 Trustee, )
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Appellee.
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11 IN RE DAVID FOLSOM,

Civil No. 10cv2440 L (NLS)

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Bankruptcy No. 09-08919-B7

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Adversary No. 10-90142-B7
ORDER DENYING MOTION FOR
LEAVE TO APPEAL IN FORMA
PAUPERIS [doc. #19]

David Folsom moves to proceed in forma pauperis on appeal. Under Rule 24(a)(1) of the

21 Federal Rules of Appellate Procedure, a “a party to a district-court action who desires to appeal in
22 forma pauperis must file a motion in the district court.” Also, [t]he party must attach an affidavit
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(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability

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to pay or to give security for fees and costs;

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(B) claims an entitlement to redress; and

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(C) states the issues that the party intends to present on appeal.

28 FED. R. APP. PROC. 24(a)(1).
10cv2440

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Having reviewed the affidavit attached to Folsom’s motion, the Court finds that he has failed

2 to demonstrate his inability to pay or to give security for fees and costs.
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The benefit of proceeding IFP is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221,

4 1231 (9th Cir. 1984). A petitioner need not “be absolutely destitute to enjoy the benefit of this
5 statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); Jefferson v. U.S., 277
6 F.2d 723, 725 (9th Cir. 1960), cert. denied, 364 U.S. 896 (1960). He must, however, demonstrate
7 his poverty with “some particularity, definiteness, and certainty.” United States v. McQuade, 647
8 F.2d 938, 940 (9th Cir.1981) ( per curiam ). "[T]he same even-handed care must be employed to
9 assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims
10 or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own
11 oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
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Folsom indicates that his average monthly amount of money received during the past 12

13 months and the amount expected next month is $2,300.00. He also states that his total monthly
14 expenses are $985.00. Folsom’s spouse anticipates receiving $5,900.00 next month and having
15 expenses of $5,800.00. The affidavit also shows the value of real estate in the amounts of $590,000
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Under these facts, the Court is not persuaded that Folsom is unable to pay the appellate filing

18 fee. Accordingly, Folsom's motion to proceed in forma pauperis on appeal is DENIED.
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IT IS SO ORDERED.

20 DATED: August 22, 2011
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M. James Lorenz
United States District Court Judge

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24 COPY TO:
25 HON. NITA L. STORMES
UNITED STATES MAGISTRATE JUDGE
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27 ALL COUNSEL/PARTIES
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10cv2440

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