Unpublished Disposition, 877 F.2d 65 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 65 (9th Cir. 1989)

James Earl WILLIAMS, Plaintiff--Appellant,v.LATINS, Defendant--Appellee.

No. 88-6167.

United States Court of Appeals, Ninth Circuit.

Submitted June 9, 1989.* June 14, 1989.

Gordon Thompson, Jr., District Judge, Presiding.

Before HUG, K.K. HALL, and WIGGINS, Circuit Judges.


James Earl Williams brought this action under 42 U.S.C. § 1983 against Latins. We have jurisdiction under 28 U.S.C. § 1291. See Roberts v. United States, 339 U.S. 844, 845 (1950) (per curiam) (" [D]enial ... of a motion to proceed in forma pauperis is an appealable order.").

Williams appeals the district court's denial of his request to proceed in forma pauperis under 28 U.S.C. § 1915. The district court reviewed Williams' affidavit in support of his request and concluded that Williams was not sufficiently impoverished. We agree.

In order to proceed in forma pauperis, the petitioner must submit an "affidavit that he is unable to pay [the costs of initiating an action] or give security therefor." 28 U.S.C.A. Sec. 1915. "If an applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the necessities of life, then he should be required, in the First Circuit's phrase, to 'put his money where his mouth is.' " Temple v. Ellerthorpe, 586 F. Supp. 848, 851 (D.R.I. 1984) (quoting In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971) (per curiam)).

In his affidavit, Williams indicates that within the past twelve months he received the sum of $5,000 in settling a (presumably unrelated) civil action, and there is no indication that this money is not available to him. Williams also states that no one depends on him for support.

Accordingly, the district court did not err in ruling that Williams has failed to show that he is entitled to proceed in forma pauperis, and so we affirm its order denying the request. We note in passing that Williams' complaint, in its present form, fails to articulate the basis of state action. Therefore, in the event that Williams decides to proceed, at his own expense, with the 1983 action, the district court of course is free to consider dismissal for failure to state a claim.



The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3