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Burnett v. Herrin City Police

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


August 11, 2010

STEVEN BURNETT, PLAINTIFF,
v.
HERRIN CITY POLICE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff Steven Burnett's pro se Motion to Proceed in Forma Pauperis (Doc. 2).

A federal court may permit an indigent party to proceed without pre-payment of fees. 28 U.S.C. § 1915(a)(1) (2006). In determining indigence, courts must remember that "a person need not be absolutely destitute in order to enjoy the benefit of § 1915." Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980) (discussing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). Even if a plaintiff is found to be indigent, a court can deny a qualified plaintiff leave to file in forma pauperis or can dismiss a case if the action is clearly frivolous or malicious. § 1915(e)(2)(B)(i).

Here, the Court is not satisfied from Burnett's affidavit that he is indigent. In said affidavit, Burnett states that his current net income is $313.00 per week, or approximately $1,360.00 per month, and that he has $50.00 in a checking or savings account. He also avers that his regular monthly expenses total $932.00,*fn1 which includes $200.00 allotted for food. This leaves Burnett with $432.00 every month. While the determination of indigence is by no means a bright-lined test, the Court is hesitant to label Burnett - an individual who pockets every month more than the $350.00 filing fee imposed by this Court - as indigent. He can and should pay for the costs of this litigation.*fn2

For the foregoing reasons, the Court DENIES Burnett's Motion for Leave to Proceed in Forma Pauperis (Doc. 2) without prejudice and ORDERS Burnett to pay the $350.00 filing fee if he does not wish for this action to be dismissed. The Court makes no finding as to the meritoriousness of Burnett's case.

IT IS SO ORDERED.


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