Mitcham v. CWB Mortgage Ventures, LLC et al

Filing 6

MEMORANDUM DECISION AND ORDER denying 1 Motion for Leave to Proceed in forma pauperis. Plaintiff shall pay the Clerk of Court the proper filing fees by 11/4/2011 or this case will be dismissed in its entirety. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THOMAS T. MITCHAM,
Case No. 1:11-cv-00259-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CWB MORTGAGE VENTURES, LLC,
et. al.,
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Application For In Forma Pauperis Status (Dkt.
1). For the following reasons, the Court will deny the Application.
ANALYSIS
Pursuant to federal statute, “any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or
criminal, . . . without prepayment of fees or security therefor.” 28 U.S.C. § 1915(a)(1).
In order to qualify for in forma pauperis status, Plaintiff must submit an affidavit that
includes a statement of all assets he possesses and that, “because of [his] poverty, [he] is
unable to pay the costs of said proceeding or give security therefore, and that [he]
believe[s] that [he is] entitled to relief.” Id.

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The affidavit is sufficient if it states that the plaintiff, because of his poverty,
cannot “pay or give security for the costs” and still be able to provide himself and
dependents “with necessities of life.” Adkins v. E.I. DuPont de Numours & Co., 335 U.S.
331, 339 (1948). The affidavit must “state the facts as to affiant’s poverty with some
particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981) (internal quotation omitted).
Here, Mitcham filed a complaint seeking declaratory relief, injunctive relief and a
permanent injunction. The claims relate to two mortgage loan documents on his personal
residence in the amounts of $848,000.00 and $105,894.00. Mitcham states that he is not
employed, but he also states that he is a self-employed realator, and that he made
$21,500.00 during the past 12 months. Apparently, Mitcham does not consider selfemployed to mean employed. Regardless, he had an income of $21,500.00 over the past
12 months. He also states that he has an interest in his personal residence, which he
values at $325,000.00. He does not indicate how much interest he has in the property, but
based on the loan amounts and nature of this case, the Court assumes he has no equity in
the residence. Mitcham also owns a Ford Explorer he values at $3,200.00. He indicates
that he has no dependents. Application for In Forma Pauperis Status (Docket No. 1).
Petitioner’s annual income of $21,500.00 is almost exactly twice the guideline
figure of $10,890.00 for a single individual set forth in the United States Department of

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Health and Human Services’ 2011 Poverty Guidelines.1 Under these circumstances, the
Court does not find that Mitcham cannot “pay or give security for the costs” and still be
able to provide himself “with necessities of life.” Adkins, 335 U.S. at 339. Accordingly,
the Court will deny Mitcham’s Application.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Application For In Forma Pauperis Status (Dkt. 1) is DENIED.
Plaintiff shall pay the Clerk of the Court the proper filing fees on or before
November 4, 2011 or this case will be dismissed in its entirety.

DATED: October 4, 2011

B. LYNN WINMILL
Chief U.S. District Court Judge

1

See http://aspe.hhs.gov/poverty/09poverty.shtml

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