#### Kenneth C. MERTZ, Plaintiff, v. UNITED STATES CUSTOMS SERVICE, Defendant.

Court No. 89-11-00639.

United States Court of International Trade.

Oct. 1, 1990.

Kenneth C. Mertz, pro se.

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty.-in-Charge, Intern. Trade Field Office, Commercial Litigation Branch, New York City (Barbara M. Epstein, Washington, D.C., on the motion), for defendant.

MEMORANDUM OPINION AND ORDER

RE, Chief Judge:

Plaintiff moves for an order permitting him to proceed with this action *in forma pauperis*and for appointment of counsel pro bono, pursuant to 28 U.S.C. § 1915(d). The defendant takes no position on plaintiff’s motion and defers to the discretion of the court.

A court of the United States may permit a party to proceed with litigation *in forma pauperis,*that is, “without prepayment of fees and costs or security,” if the party shows by affidavit the inability to pay the costs or to give security. *See*28 U.S.C. § 1915(a) (1988).

Section 1915(d) also provides that “[tjhe court may request an attorney to represent any such person unable to employ counsel.... ” Counsel who are appointed to represent litigants who sue *in forma pau-*
      *1108
      *peris*contribute their services without charge.

In support of his allegation of poverty, plaintiff submits an affidavit showing that he is presently employed at an annual salary of approximately $30,000. The affidavit also shows that he owns stocks and bonds with an approximate value of $15,000, a house and lot with a value of $46,000, and an automobile valued at $12,000.

Although section 1915 does not require a party seeking to proceed *in forma pauper-is*to prove destitution, plaintiff has not demonstrated the degree of poverty found necessary in cases that have granted *in forma pauperis*status. *See, e.g., Potnick v. Eastern State Hosp.,*701 F.2d 243 (2nd Cir.1983), in which the district court denied the plaintiffs motion to proceed *in forma pauperis.*In reversing, the appellate court noted that the plaintiff had “a monthly income of $181 in welfare benefits, $41 in food stamps, a checking account balance of $59.77 and a 1974 Buick on which he owed $3600.” *Id.*at 244.

In *Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc.,*865 F.2d 22 (2nd Cir.1988), the district court denied the defendant’s motion to proceed *in forma pau-peris.*The district court stated that the pro se defendant, who estimated his net income at approximately $20,000, had failed to establish indigence. *See id.*at 23.

On appeal, in affirming, the Court of Appeals for the Second Circuit concluded that the defendant “has not demonstrated the poverty found in cases, such as *Pot-nick,*that have granted *in forma pauperis*status.” *See id.*The appellate court held that, since section 1915(d) allows appointment of counsel only when a litigant is indigent, the district court did not err in denying the defendant *in forma pauperis*status. Hence, the Court of Appeals for the Second Circuit affirmed the decision of the district court.

In this case, plaintiffs affidavit negates the degree of poverty or indigence necessary to proceed *in forma pauperis.*Hence, plaintiffs motion to proceed *in for-ma pauperis,*and for appointment of counsel pro bono, is denied.