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Burnett v. Herrin City Police

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


August 19, 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 Motionfor Leave (Doc. 7), specifically leave to re-file an in forma pauperis motion, and second Motion to Proceed in Forma Pauperis (Doc. 8).

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, although the Court previously found that Burnett was not indigent for purposes of proceeding in forma pauperis, (see Doc. 6), Burnett's financial situation has since drastically changed. Having lost his job at Express Tweedy Towing, Burnett has gone from earning approximately $313.00 per week to collecting $51.00 every week in unemployment. Burnett's liabilities far outweigh his unemployment benefits; as such, the Court hereby finds him indigent for purposes of its in forma pauperis analysis. Furthermore, the Court does not find anything in the file to indicate that this action is frivolous or malicious. Therefore, the Court GRANTS Burnett's Motion to Proceed in Forma Pauperis (Doc. 8) without prepayment of fees and costs. The Court notes, however, that should it become apparent that the action is frivolous or malicious at any time in the future, it may dismiss the case pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The Court DENIES as moot Burnett's Motion for Leave (Doc. 7), as Burnett did not need leave to file the instant in forma pauperis motion.

If Burnett wishes the United States Marshal Service to serve process in this case, the Court DIRECTS him to provide to the United States Marshal Service the summons issued in this case, the appropriately completed USM-285 forms and sufficient copies of the complaint for service.

The Court further DIRECTS the United States Marshal, upon receipt of the aforementioned documents from the plaintiff and pursuant to Federal Rule of Civil Procedure 4(c)(3), to serve a copy of summons, complaint and this order upon the defendants in any manner consistent with Federal Rule of Civil Procedure 4, as directed by Burnett.

IT IS SO ORDERED.

20100819

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