                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2007

Huertas v. Marvel & Maloney
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1382




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Recommended Citation
"Huertas v. Marvel & Maloney" (2007). 2007 Decisions. Paper 194.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/194


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RESUBMIT CLD-280                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                   No. 07-1382


                            HECTOR L. HUERTAS,
                             on behalf of himself and
                            all other similarly situated

                                        v.

                           MARVEL & MALONEY,
                           A Professional Corporation;
                           MICHAEL J. MALONEY

                                  Hector L. Huertas,

                                             Appellant


                  On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civ. No. 06-cv-06161)
                   District Judge: Honorable Renee Marie Bumb


 Submitted on Motion to Proceed In Forma Pauperis and for Possible Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 9, 2007

            Before:    RENDELL, SMITH and JORDAN, Circuit Judges

                        (Opinion Filed: November 26, 2007)


                                    OPINION


PER CURIAM
       Hector L. Huertas wished to file a complaint in the District Court without paying

the filing fees. Accordingly, he submitted an application to proceed in forma pauperis.

In his application, he reported a monthly income of $1927.90 (Social Security benefits

and disability benefits from the Veterans Administration) and a balance of $952.60 in a

money market account. He did not report any expenses. The District Court denied

Huertas’s application, noting that he had available funds to pay the filing fees.

       Huertas appeals. He has filed an application to appeal in forma pauperis. He

reports a similar monthly income and slightly higher account balance. Unlike in the

District Court, Huertas’s application includes a listing of his monthly expenses. Also, in

a supplemental filing in response to our request, Huertas provides a detailed accounting of

many of his expenses. His expenses are approximately equal to his monthly income.

       We will grant Huertas’s application, but we will summarily affirm, resolving the

apparent contradiction in the process. Essentially, on appeal, Huertas met his burden to

show that he is not able to pay the fees, while, in the District Court, he did not.

       We have jurisdiction over Heurtas’s appeal because the District Court’s order

denying leave to proceed in forma pauperis is a final, collateral order appealable under 28

U.S.C. § 1291. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). We

review the District Court’s order for abuse of discretion. See Jones v. Zimmerman, 752

F.2d 76, 78 (3d Cir. 1985).

       The decision to grant in forma pauperis turns on whether an applicant is

“economically eligible” for such status. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976)

(citation omitted). A person need not be “absolutely destitute” to proceed in forma
pauperis, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); however,

an affiant must show the inability to pay the fees on appeal, see Walker v. People Express

Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).

       The District Court did not abuse its discretion in denying Huertas in

forma pauperis status on the basis of his affidavit. In the District Court, Huertas

described his monthly income and an account balance. Unlike in his application to us

(and in his response to our order), he did not list any expenses or liabilities in his

application to the District Court. Given the information that Huertas provided, it cannot

be said that the District Court abused its discretion in concluding that Huertas had funds

available to pay the requisite fees. Accordingly, although we grant Huertas’s application

to proceed in forma pauperis on appeal, we will affirm the District Court’s order.
