Fierro v. Smith, et al.

Filing 3

ORDER by District Judge Kenneth J. Gonzales denying 2 Motion to Proceed under 28 U.S.C. 1915. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ERIC FIERRO,
Petitioner,
v.

No. 17-CV-00832-KG-CG

R.C. SMITH,
Respondent.

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
This matter is before the Court on Petitioner Eric Fierro’s Prisoner’s Motion and Affidavit
For Leave To Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2], filed on August 11, 2017. For the
reasons explained below, Petitioner’s motion will be denied.
Title 28 of the United States Code, section 1915(a) provides that the Court may authorize
the commencement of any suit without prepayment of fees by a person who submits an affidavit
that includes a statement of all assets the person possesses and that the person is unable to pay such
fees. 28 U.S.C. § 1915(a)(1). This statute “is designed to ensure that indigent litigants have
meaningful access to the federal courts.”

Neitzke v. Williams, 490 U.S. 319, 324 (1989).

However, “proceeding in forma pauperis in a civil case is a privilege, not a right—fundamental or
otherwise.” White v. State of Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (internal quotation
marks and citation omitted). While a litigant need not “be absolutely destitute to enjoy the benefit
of the statute,” the litigant must provide an affidavit “which states that one cannot because of his
poverty pay or give security for the costs . . . and still be able to provide for himself and dependents
with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
The filing fee in the present case is $5. See 28 U.S.C. § 1914(a). According to the inmate

account statement submitted by Petitioner, he has sufficient funds available in his inmate account
to prepay the $5 filing fee. [Doc. 2 at 3] Therefore, Petitioner’s motion to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 will be denied.
Petitioner must pay the $5 filing fee within thirty (30) days of the date of this order or show
cause for his failure to do so. Failure timely to pay the filing fee, or to show cause, may result in
the dismissal of this action without further notice.
IT IS THEREFORE ORDERED that Petitioner’s Prisoner’s Motion and Affidavit For
Leave To Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2] is DENIED;
IT IS FURTHER ORDERED that Petitioner submit the $5 filing fee within thirty (30) days
of the date of this Order or show cause why this action should not be dismissed.

____________________________________
UNITED STATES DISTRICT JUDGE