Marin v. Escondido Care Center et al

Filing 3

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and dismissing complaint without prejudice. Signed by Judge Anthony J. Battaglia on 09/29/11. (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MEL M. MARIN, personally and as heir of
the Estate of Milivoj and Eva Marinkovic;

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Plaintiff,
v.

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ESCONDIDO CARE CENTER, et al.,
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Defendants.
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Civil No.11cv1610 AJB (JMA)
ORDER DENYING IN FORMA
PAUPERIS STATUS

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On July 21, 2011, Mel M. Marin, a non-prisoner proceeding pro se, filed a Motion to Proceed in

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forma pauperis [Doc. No. 2] of case number 3:11-cv-01610-AJB-JMA to this Court. Plaintiff submitted

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a declaration in support of a request to proceed in forma pauperis in accordance with 28 U.S.C. §

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1915(a)(1) and Local Rule 3.2(a).

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The Court finds that the Plaintiff’s declaration of inability to pay costs or give security is

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insufficient to permit Plaintiff to proceed in forma pauperis. Permission to file a petition for writ of

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mandamus in forma pauperis will not be granted unless there is some merit in the petition. 28 U.S.C.A.

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§ 1915. “To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116

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(9th Cir.1965). One need not be absolutely destitute to obtain benefits of statute dealing with proceed-

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ings in forma pauperis in federal courts. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948).

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The motion, however, must state facts as to affiant's poverty with some particularity, definiteness and

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certainty. Jefferson v. U.S., 277 F. 2d 723 (9th Cir. 1960).
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11cv1610

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The Plaintiff’s motion to proceed in forma pauperis lacks merit because:

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Plaintiff has noted receiving “Social Security, disability or other welfare” but has failed

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to describe the source, the amount received, and what the Plaintiff expects to continue

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receiving each month.

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Plaintiff has noted receiving “Gifts or inheritances” but has failed to describe the source,
the amount received, and what the Plaintiff expects to continue receiving each month.

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Plaintiff’s debts are only described as “plenty of debts.”

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Plaintiff has failed to note any housing, transportation, utilities, or loan payments, or other

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regular monthly expenses.

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It is under the Court's discretion to grant or deny permission to proceed in forma pauperis based

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on the Plaintiff’s claim. 28 U.S.C. § 1915(e)(2). Without further evidence, the Court lacks specific facts

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to find that the Plaintiff is not able to pay the filing fee under 28 U.S.C. § 1914(a). It is advised that the

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Plaintiff submit a current revision of the short form “Application To Proceed In District Court Without

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Prepaying Fees or Costs” available on the United States Courts website.1

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In light of this information, IT IS HEREBY ORDERED that the Plaintiff’s Motion to Proceed in

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forma pauperis is DENIED and the Complaint is DISMISSED without prejudice. Pursuant to this

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Order, however, Plaintiff is granted 30 days leave to pay the $350 filing fee required to maintain this

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action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding the Plaintiff’s

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economic status. IF PLAINTIFF CHOOSES TO FILE ADDITIONAL INFORMATION RE-

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GARDING HIS POVERTY, HE MUST ATTACH A COPY OF THIS ORDER.

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IT IS SO ORDERED.

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DATED: September 29, 2011

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Hon. Anthony J. Battaglia
U.S. District Judge

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http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO240.pdf
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