Duell v. O'Malley
- Proceeding
- district
- Area
- civil
- Panel
- Michelle M. Pettit (author)
Analysis
Petitioner Todd Alan Duell, proceeding pro se, filed a Petition for Writ of Mandamus and an Application to Proceed in Forma Pauperis (IFP) in a Social Security case. The Magistrate Judge recommended denying the IFP motion without prejudice and dismissing the petition for failure to prepay the filing fee, citing the Petitioner's failure to allege with particularity that he could not afford the necessities of life.
| What the court decided | The model |
|---|---|
Deny Petitioner's Application to Proceed in Forma Pauperis without prejudice“Accordingly, the Court DENIES the Motion without prejudice.” | agree with court The court applied the correct legal standard from the Ninth Circuit, requiring an IFP affidavit to allege poverty with some particularity and demonstrate that paying costs would result in an inability to afford the necessities of life. The court found the affidavit's claim of 'no monthly expenses' incredible and unsupported. Because the affidavit failed to meet the statutory and case law requirements for IFP status, the denial was legally sound. The denial without prejudice allows the petitioner to correct the deficiencies, which is appropriate. |
Dismiss Petitioner's Petition for Writ of Mandamus without prejudice for failure to prepay filing fee“DISMISSING without prejudice Petitioner’s Petition for failure to prepay the filing fee mandated by 28 U.S.C. § 1914(a), ECF No. 1” | agree with court Under 28 U.S.C. § 1914(a), a filing fee is required for civil actions, including mandamus petitions, unless the petitioner is granted IFP status. Since the IFP motion was denied, the petition cannot proceed without payment. Dismissing without prejudice is the standard procedural mechanism to allow the petitioner to pay the fee or refile a proper IFP application within a set timeframe. |
The order itself: sound — The order correctly identifies the legal standard for IFP status under 28 U.S.C. § 1915 and Ninth Circuit precedent (Escobeda). It applies this standard to the specific facts of the affidavit (no income, no assets, but claimed no expenses) and finds the affidavit deficient because it lacks particularity and credibility regarding expenses. The procedural consequences (denial without prejudice, dismissal without prejudice, 45-day deadline) are standard and appropriate for a pro se litigant who has failed to meet the initial IFP threshold. The reasoning is complete and directly addresses the motion.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD ALAN DUELL, Case No.: 24-cv-0884-WQH-MMP 12 Petitioner, REPORT AND 13 v. RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA 14 MARTIN O'MALLEY, PAUPERIS Commissioner of Social Security 15 Administration, 16 [ECF No. 2] Respondent. 17 18 19 This Report and Recommendation is submitted to the United States District Judge 20 William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the 21 United States District Court for the Southern District of California. On May 16, 2024, 22 Petitioner Todd Alan Duell (“Petitioner”), proceeding pro se, filed a Petition of Writ of 23 Mandamus (“Petition”) against Respondent Martin O’Malley, Commissioner of Social 24 Security Administration, requesting the Court issue a writ of mandamus to Respondent 25 “directing the Commissioner to immediately fulfill his nondiscretionary duty to 26 Petitioner.” [ECF No. 1 at 6.] Before the Court is Petitioner’s Application to Proceed in 27 District Court Without Prepaying Fees or Costs (“Motion”). [ECF No. 2.] For the reasons 28 set forth below, the Court RECOMMENDS the Motion be DENIED without prejudice. 1 I. DISCUSSION 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff or petitioner’s 5 failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis 6 (“IFP”). 28 U.S.C. § 1915(a)(1). Although the statute does not specify the qualifications 7 for proceeding IFP, the petitioner’s affidavit must allege poverty with some particularity. 8 Escobeda v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Granting a petitioner leave 9 to proceed IFP may be proper, for example, when the affidavit demonstrates that paying 10 court costs will result in an inability to afford the “necessities of life.” Id. The affidavit, 11 however, need not demonstrate that the petitioner is destitute. Id. 12 Here, Petitioner’s sworn affidavit indicates he has no income except $290 per month 13 in public assistance benefits, no employer, no financial accounts, and no assets. Petitioner 14 attests that he has no monthly expenses. The Court does not find it credible that Petitioner 15 has no expenses whatsoever, and Petitioner provides no explanations for the lack of 16 expenses. Accordingly, Petitioner has not alleged with sufficient certainty he would be 17 unable to afford the necessities of life should he be required to pay the requisite filing fee. 18 Accordingly, the Court DENIES the Motion without prejudice. Petitioner may file 19 a new application to proceed in forma pauperis that provides full and accurate information 20 regarding the income, assets, expenses, and financial accounts. 21 II. CONCLUSION & RECOMMENDATIONS 22 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District 23 Judge issue an Order: 24 25 26 1 In addition to the $350.00 statutory fee, civil litigants must pay an additional administrative 27 fee of $55.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55.00 administrative fee does 28 1 1. Approving and adopting this Report and Recommendation; 2 2. DENYING without prejudice Petitioner’s Motion, ECF No. 2; 3 3. DISMISSING without prejudice Petitioner’s Petition for failure to prepay 4 || the filing fee mandated by 28 U.S.C. § 1914(a), ECF No. 1; AND 5 4. GRANTING Petitioner forty-five (45) days from to satisfy the following 6 ||requirements: Petitioner must either (1) pay the requisite filing fees or (2) file a new 7 || application to proceed in forma pauperis providing full and accurate information regarding 8 finances. 9 Within fourteen (14) days from the date of service of these filings and 10 || recommendations, any party may file written objections with the court. Such a document 11 ||should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 12 || Any response to the objections shall be served and filed within fourteen (14) days after the 13 || objections are filed. The parties are advised that failure to file objections within the 14 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 15 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 16 1991)). 17 IT IS SO ORDERED. 18 ||Dated: July 2, 2024 th. a 19 HON. MICHELLE M. PETTIT United States Magistrate Judge 20 21 22 23 24 25 26 27 28