IZZI v. KHECHUMIAN

Full title: JOSEPHINE IZZI, Plaintiff, v. SERJIC KHECHUMIAN; VICTOR M. MARTINEZ…

Court: United States District Court, D. New Mexico

Date published: Aug 18, 2010

Civ. No. 10-0668 JB/LFG (D.N.M. Aug. 18, 2010)

Opinion

Civ. No. 10-0668 JB/LFG.

August 18, 2010

MAGISTRATE JUDGE'S ANALYSIS AND RECOMMENDED DISPOSITION ¹

1 Within fourteen (14) days after a party is served with a copy of this analysis and recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such analysis and recommendation. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the analysis and recommendation. If no objections are filed, no appellate review will be allowed.

LORENZO GARCIA, Magistrate Judge

THIS MATTER is before me on an Order of reference [Doc. 5]. Pro se Plaintiff Josephine Izzi seeks the Court's order authorizing her to proceed in forma pauperis ("IFP"), with this litigation, i.e., without prepaying costs or filing fees. See Doc. 3, filed July 15, 2010. IFP status should be granted only if a plaintiff demonstrates that she "cannot because of [her] poverty pay or give security for the costs . . . and still be able to provide [her]self and dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339 (1948). If the Court determines that "the allegation of poverty is untrue," it must dismiss the case. See 28 U.S.C. § 1915(e)(2)(A).

Izzi, who is 42 and has no dependents, earns $2200/month as a teacher and brings home at least $1450/month. See Doc. 3 at 2. She lives with her parents, thus she has no expenses for rent or utilities. See id. at 4. She lists expenses of $400/month for food, $560/month for car payment/insurance and other transportation costs, and $50/month for medical expenses. See id. On these facts, Izzi has failed to show that she cannot, because of poverty, provide herself with the necessities of life and pay the filing fee. See Adkins, 335 U.S. at 339.

I recommend, therefore, that Izzi's application to proceed IFP be denied and her Complaint dismissed without prejudice. See § 1915(e)(2)(A); Lemons v. K.C. Mo. Police, No. 05-1254, 158 Fed. Appx. 159, 160, 2005 WL 3388580, at *1 (10^th Cir. Dec. 13, 2005) (noting that, if a plaintiff fails to establish that she is unable to pay fees, the Court should dismiss the complaint without prejudice, after which the plaintiff "may initiate a new action by 1) refiling [her] complaint and 2) paying the [] filing fee required under 28 U.S.C. § 1914").

Recommended Disposition

That Izzi's request to proceed in forma pauperis [Doc. 3] be denied and that her Complaint be dismissed without prejudice.