UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff/Respondent.

v.

MIGUEL ALBERTO MAJARRES-DIAZ,

[True Name: ROGELIO GOMEZ]

Defendant/Petitioner.

____________________________________/

Case No. 08-20613

HON. MARIANNE O. BATTANI

ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S 

 MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is Defendant/Petitioner Miguel Alberto Majarres-Diaz’s “Petitioner’s

Motion and Affidavit For Leave To Proceed In Forma Pauperis Pursuant to Title 28 U.S.C.

1915.” (Doc. 29). Defendant pled guilty to one count of “Unlawful Re-entry After

Deportation for an Aggravated Felony” and Judgment was entered January 28, 2008.

(Doc. 24). Defendant filed a timely Notice of Appeal (Doc. 25), but has not paid any portion

of the $455.00 filing fee. (Doc. 28). The Court characterizes Defendant's filing as an

application to proceed in forma pauperis on appeal from the January 28, 2008 Judgment.

The Court has reviewed Defendant's application, and for the reasons that follow, DENIES

without the prejudice, the request to proceed in forma pauperis.

To proceed in forma pauperis on appeal under 28 U.S.C. § 1915, a prisoner is

required to: (1) submit "an affidavit that includes a statement of all assets such prisoner

possess," 28 U.S.C. § 1915(a)(1), (2) submit "a certified copy of the trust fund account

statement (or institutional equivalent) for the prisoner for the 6-month period immediately
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preceding the filing of the complaint or notice of appeal," 28 U.S.C. § 1915(a)(2), and (3)

pay, if funds exist, "an initial partial filing fee," 28 U.S.C. § 1915(b)(1). Based on these

submissions, the court must examine the financial condition of the applicant to determine

whether the payment of fees would cause an undue financial hardship. Prows v. Kastner,

842 F.2d 138, 140 (5th Cir.), cert. denied, 488 U.S. 941 (1988). A court may properly deny

a request to proceed in forma pauperis if the reviewing court is unable to determine

whether the applicant is indigent. Flippin v. Coburn, 107 Fed.Appx. 520 (6th Cir. 2004)

(unpublished). Additionally, the failure to submit a certified trust fund account statement

bars consideration of an attempt to proceed in forma pauperis. Hart v. Jaukins, 99 Fed.

Appx. 208 (10th Cir. 2004). 

Defendant's application is incomplete and cannot be considered at this time because

he did not submit an affidavit nor file a copy of his prison trust fund account as required

under the statute. Defendant's "Financial Affidavit" is not an affidavit because it was not

sworn by Defendant before an officer authorized to administer oaths, such as a notary

public. See, U.S. v. Nunley, 369 F.Supp. 171 (D.C. Tenn 1972) (defective jurat in affidavit

does not meet § 1915(a)(1) requirements); Brown v. Matthew, 142 F.R.D. 496 (D. Kan.

1992) (a motion to proceed in forma pauperis may be denied if the affidavit is not

notarized). Even if the Court characterized the document as an affidavit, there is a conflict

between the text of his motion and the "Financial Affidavit". The conflict concerns his

financial condition and creates ambiguity. In his motion, Defendant states, "I do not own

cash or a checking or savings account." (Doc. 29 at 2). In the body of the "Financial

Affidavit", the check boxes in the “Cash” row of the “Assets” section are not filled out. (Doc

29 at 3). This leaves the Court guessing as to the actual financial situation of Defendant.
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Such patent ambiguity prevents the Court from determining Defendant's eligibility for

pauper status. 

Furthermore, assuming the Court is satisfied with Defendant's "affidavit" of hardship,

his application nevertheless remains incomplete because Defendant did not file with his

motion a certified copy of his prison trust fund account statement. The plain language of

28 U.S.C. § 1915(a)(2) requires such a filing. Defendant does not explain why this

document is missing from his application. The Court cannot review Defendant's financial

condition without the required records. 

In sum, Defendant's non-compliance with the statute prevents this Court from

considering his application to proceed in forma pauperis. Defendant's request to proceed

in forma pauperis is DENIED without prejudice.

IT IS SO ORDERED.

s/Marianne O. Battai 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: August 25, 2010

CERTIFICATE OF SERVICE

A Copy of this Order was e-filed and/or mailed to Miguel Alberto Majarres-Diaz

and counsel of record on this date. 

s/Bernadette M. Thebolt

Case Manager