Opinion
No. CIV S-10-3320 MCE EFB PS.
December 22, 2010
ORDER
Plaintiff has filed an application to proceed in forma pauperis, and has submitted an affidavit purporting to demonstrate that she is unable to prepay fees and costs or give security for them. Dckt. No. 2. Plaintiff states in the application that she is not currently employed and that she receives $1245.00 per month in Social Security benefits. However, the application also states that plaintiff receives an unspecified amount per month in "rent payments, interest, or dividends," and that she owns a 2003 Honda Element; a primary home in Oroville, CA; a rental property in Oroville, CA; and a rental property in San Jose, CA. Id. Plaintiff does not indicate whether she has any money in cash or in a checking or savings account. Id.
It is unclear whether plaintiff seeks leave to proceed in forma pauperis pursuant to 42 U.S.C. § 2000e-5(f)(1) or pursuant to 28 U.S.C. § 1915. See 42 U.S.C. § 2000e-5(f)(1) ("Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security."); 28 U.S.C. § 1915(a)(1) ("[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.").
Because the value of plaintiff's properties and the amount of income she generates from her rental properties is unclear, and because plaintiff has not indicated whether she has any money in cash or in a checking or savings account, the affidavit is insufficient to evaluate whether plaintiff can pay or give security for court costs and still be able to provide herself and her dependents with the necessities of life. See Adkins v. E.I. Dupont de Nemours Co., 335 U.S. 331, 339 (1948).
Accordingly, plaintiff is directed to file, within fourteen days of this order, a further affidavit clarifying (1) how much monthly income she generates from her rental properties; (2) the amount of money she has in cash or in a checking or savings account; and (3) the value of the assets she owns. The court will then resume consideration of plaintiff's application to proceed in forma pauperis.
Further, although plaintiff's complaint does not allege a specific basis for relief, it appears that plaintiff is purporting to sue under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. However, among other problems with plaintiff's complaint, plaintiff does not allege that she filed a charge with the U.S. Equal Employment Opportunity Commission, does not allege that she received a notice of her right to sue or attach a copy of any such notice to her complaint, and does not establish, therefore, that she exhausted her administrative remedies or that this action was timely filed. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. Nonetheless, the court defers ruling on these issues until after plaintiff's in forma pauperis status is determined.
SO ORDERED.
DATED: December 22, 2010.