Diaz-Ojeda v. Pedro Toledo
Case Date: 05/22/1995
Court: United States Court of Appeals
Docket No: 95-1044
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May 22, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1044 ORLANDO DIAZ-OJEDA, Plaintiff, Appellant, v. PEDRO TOLEDO, SUPERINTENDENT, THE COMMONWEALTH OF PUERTO RICO POLICE DEPARTMENT, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Selya and Boudin, Circuit Judges. ______________ ____________________ Orlando Diaz-Ojeda on brief pro se. __________________ Carlos Lugo Fiol, Acting Solicitor General, and Lorraine J. __________________ ____________ Riefkohl, Assistant Solicitor General, Department of Justice, on brief ________ for appellees. ____________________ ____________________ Per Curiam. Plaintiff, Orlando Diaz-Ojeda, appeals __________ from the district court's denial of his motion to proceed in __ forma pauperis. See Roberts v. United States District Court, _____ ________ ___ _______ ____________________________ 339 U.S. 844, 845 (1950) (holding that denial of motion to proceed in forma pauperis is immediately appealable). We __ _____ ________ affirm. Under 28 U.S.C. 1915(a), a court may authorize the commencement of a law suit "without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." A district court's determination of a party's ability to pay such costs is a "determination that will 'not be lightly overturned.'" United States v. Lyons, _____________ _____ 898 F.2d 210, 216 (1st Cir. 1990) (citation omitted). See ___ also Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th ____ _____ ____________________ Cir. 1983) ("Under 28 U.S.C. 1915, the decision whether to grant or deny in forma pauperis status is within the sound discretion of the trial court"). We have carefully reviewed the record, including plaintiff's affidavit accompanying his motion to proceed in __ forma pauperis, and the parties' briefs. The record reveals _____ ________ that plaintiff lives with his parents, pays no rent, has no dependents and receives government unemployment payments. Under these circumstances, we conclude that payment of the $120 filing fee and other costs would not deprive plaintiff of the "necessities of life." Adkins v. DuPont de Nemours & ______ ____________________ Co., Inc., 335 U.S. 331, 339 (1948). Therefore, the district _________ court did not abuse its discretion in denying plaintiff's motion. The district court's order of December 13, 1994, denying plaintiff's motion to proceed in forma pauperis is __ _____ ________ affirmed. ________ -3- |