West v. Bailey et al

Filing 4

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis; and Denying as Moot 3 Motion for Appointment of Counsel. If Plaintiff wishes to proceed, she must pay the $350 filing fee required to commence this action by 8/29/2011. Failure to do so will result in the dismissal of the action. Signed by Judge Michael M. Anello on 8/15/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CATHERINE E. WEST, R.N., B.S.N.,
P.H.N.,

CASE NO. 11cv1760-MMA (POR)

Plaintiff,

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vs.

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

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[Doc. No. 2]

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DENYING AS MOOT MOTION FOR
APPOINTMENT OF COUNSEL

CALIFORNIA BOARD of REGISTERED
NURSING, et al.,

[Doc. No. 3]

Defendants.

On August 8, 2011, Plaintiff Catherine E. West, proceeding pro se, filed a complaint against

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Defendants California Board of Registered Nursing and Employment Development Department.

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Although the precise nature of Plaintiff’s claims is unclear, she appears to challenge the revocation

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or withholding of her license to practice as a Registered Nurse. Plaintiff also filed a motion to

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proceed in forma pauperis and a motion requesting appointment of counsel.

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C.

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§ 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only if the

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plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in forma pauperis is a
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11cv1760

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privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).
Plaintiff avers that she is employed part time, earning approximately $160 per week, and

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currently receives Social Security benefits in the amount of $1799 per month. In addition, Plaintiff

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states that she is a recipient of a $13,091 annuity payment. Plaintiff lists a variety of personal items

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as valuable assets, and states that she owns an automobile. Plaintiff indicates that she owes monthly

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debts, including rent, pet-related expenses, and payments to various creditors. The Court’s

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calculates based on Plaintiff’s representations that her stated income exceeds her identified debts by

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approximately $600 per month.

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A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I.

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DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But “the same even-handed care must be

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employed to assure that federal funds are not squandered to underwrite, at public expense, either

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frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part,

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to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Here, Plaintiff’s

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submission does not demonstrate that she lacks the financial resources or assets to pay the costs of

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commencing this action.

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Accordingly, the Court DENIES Plaintiff’s motion to proceed in forma pauperis for the

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reasons stated above. Based thereon, the Court also DENIES AS MOOT Plaintiff’s motion for

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appointment of counsel.

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If Plaintiff wishes to proceed, she must pay the $350 filing fee required to commence this
action on or before August 29, 2011. Failure to do so will result in the dismissal of the action.
IT IS SO ORDERED.
DATED: August 15, 2011

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Hon. Michael M. Anello
United States District Judge

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11cv1760