Guiliani v. Abatement, Inc. ( 1992 )

USCA1 Opinion

        February 20, 1992       [NOT FOR PUBLICATION]






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        No. 91-2285 

                                BENJAMIN J. GUILIANI,

                                Plaintiff, Appellant,

                                          v.

                              ACCURATE ABATEMENT, INC.,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                               Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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            Benjamin J. Guiliani on brief pro se.
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                      Per Curiam.   Appellant  appeals from  the district
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            court's denial of  in forma pauperis status.   See Roberts v.
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            United States District  Court, 339 U.S. 844  (1950) (allowing
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            immediate  appeal  from  the  denial  of  in  forma  pauperis

            status).  We affirm.

                      Appellant's  in forma  pauperis application  stated

            that he  had not  been employed since  October 1989,  that he

            received $435.19  in  workman's  compensation  benefits  each

            week, that  he provided  100 percent of  the support  for his

            wife and three  sons, and that his  assets were limited  to a

            1975 automobile, a  $35,000 home with mortgage,1  and $250 in

            cash.   In a subsequent filing, appellant  explained that two

            of his sons were in college and that their expenses, added to

            normal household  expenses, rendered appellant unable  to pay

            the filing fee without going into debt.

                      A  litigant need not  be destitute  in order  to be

            indigent.  Rather, if he can not pay costs  and still provide

            himself and his dependents  with the necessities of  life, he

            is entitled  to in forma pauperis status.   Adkin v. E. I. Du
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            pont de Nemours & Co., 335 U.S. 331, 339 (1948).  We review a
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            district  court's determination  whether  to  grant in  forma

            pauperis status for  abuse of discretion.   Collier v. Tatum,
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            722  F.2d 653,  656  (11th Cir.  1983)  (abuse of  discretion


                                
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            1.  In  his appellate brief, appellant stated the mortgage is
            $15,056.64.

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            standard of review applied); United States v. Lyons, 898 F.2d
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            210, 216 (1st Cir.) (district court's evaluation of a party's

            ability to pay will not be lightly overturned), cert. denied,
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            111 S. Ct. 295 (1990).

                      The  district court  did not abuse  its discretion.

            That  appellant allegedly can not finance both his children's

            college education and his  litigation without borrowing money

            for the filing fee does not  entitle him to in forma pauperis

            status.  He failed adequately  to show that paying the filing

            fee would render him unable  to provide his family with basic

            necessities --  e.g., food, shelter,  utilities, and  medical
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            care.   See Jones v.  Continental Corp., 789 F.2d  1225, 1233
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            (6th Cir. 1986) (district court  did not abuse its discretion

            in concluding  that plaintiff  had sufficient  assets to  pay

            taxed costs without being rendered destitute).

                      Affirmed.
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