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Mike Yellen v. United States Postal Service

October 31, 2012

MIKE YELLEN,
PLAINTIFF,
v.
UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Susan Oki Mollway United States District Judge

ORDER DISMISSING PETITION WITH LEAVE TO AMEND; ORDER DENYING AS MOOT APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES

I. INTRODUCTION.

On September 18, 2012, Plaintiff Mike Yellen filed a Petition for Writ of Mandate and Declaratory Relief ("Petition"), asserting that the United States Postal Service ("Postal Service") has violated his constitutional right to mail service and Title 39 of the United States Code by (1) failing to deliver mail to his residence, (2) failing to provide him with a free post office box, and (3) failing to provide him with a cluster box near his residence. Yellen also filed an Application to Proceed Without Prepayment of Fees ("Application"). The court dismisses Yellen's Petition and denies as moot the Application.

II. BACKGROUND.

Yellen's Application indicates that he has been unemployed since 2000, has $100.00 in assets, receives "state food stamps" and does not own an automobile or anything else of value. Application, ECF No. 7 at 1.

Yellen's Petition states that he lives in Keaau, Hawaii, and that the Postal Service does not deliver mail to his address. See Petition, ECF No. 1 ¶¶ 2, 4. Yellen alleges that he requested mail service, but was informed that he must join a wait list to obtain either a cluster box or post office box*fn1 for free mail delivery. See id. ¶ 4. He notes that his sister on the Big Island has been on a wait list for a cluster box near her home for the past five years. Id. Thus, Yellen alleges, he may have to wait indefinitely, or at least several years, to receive free mail service. See id.

Yellen asserts that he has a constitutional right to free mail service under article I, section 8, clause 7 of the United States Constitution, and under the Equal Protection Clause of the Fourteenth Amendment. Yellen also asserts that the Postal Service is obligated to provide him with free mail service under Title 39 of the United States Code. Yellen seeks a declaration that the Postal Service has violated his constitutional right to free mail delivery and seeks a writ of mandamus commanding the Postal Service to immediately provide him with free mail delivery service.

III. ANALYSIS.

To proceed in forma pauperis, Yellen must demonstrate that he is unable to prepay the court fees, and his Petition must be sufficient to survive dismissal. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (applying in forma pauperis requirements to nonprisoners). Although Yellen appears unable to prepay court fees, his Petition is not sufficient to survive dismissal.

A. Yellen's Application Demonstrates That He Is Unable to Prepay Court Fees.

Under 28 U.S.C. § 1915(e), the court must subject every in forma pauperis proceeding to mandatory screening and order the dismissal of the case if it is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez, 203 F.3d at 1126--27 (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

For purposes of establishing an inability to prepay court fees, "an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 331, 339 (1948) (internal quotations omitted).

Yellen's Application reflects that he receives "state food stamps" and has $100.00 in assets, but has no income and does not own any real estate, stocks, bonds, securities, other financial instruments, automobiles, or anything else of value. Application at 1-2. Based on the information provided in the Application, the court finds that Yellen has demonstrated that he is unable to prepay court ...


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