Diaz-Ojeda v. Pedro Toledo ( 1995 )

USCA1 Opinion

          May 22, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 95-1044 

                                 ORLANDO DIAZ-OJEDA,

                                Plaintiff, Appellant,

                                          v.

            PEDRO TOLEDO, SUPERINTENDENT, THE COMMONWEALTH OF PUERTO RICO
                              POLICE DEPARTMENT, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                 ____________________

                                        Before

                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ____________________

            Orlando Diaz-Ojeda on brief pro se.
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            Carlos  Lugo  Fiol, Acting  Solicitor  General,  and  Lorraine  J.
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        Riefkohl, Assistant Solicitor General, Department of Justice, on brief
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        for appellees.


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                      Per Curiam.  Plaintiff, Orlando Diaz-Ojeda, appeals
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            from  the district court's denial of his motion to proceed in
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            forma pauperis.  See Roberts v. United States District Court,
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            339  U.S. 844, 845 (1950)  (holding that denial  of motion to

            proceed  in forma  pauperis is  immediately appealable).   We
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            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,
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            898 F.2d  210, 216  (1st Cir.  1990) (citation  omitted). See
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            also  Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th
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            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
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            forma pauperis, and the parties'  briefs.  The record reveals
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            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 &
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            Co., Inc., 335 U.S. 331, 339 (1948).  Therefore, the district
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            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
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            affirmed.
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