Clayton v. Colvin

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 EDWARD C., Case No.: 24-cv-02257-JLB 14 Plaintiff, ORDER DENYING WITHOUT 15 v. PREJUDICE MOTION FOR LEAVE TO PROCEED IN FORMA 16 CAROLYN COLVIN, Acting PAUPERIS Commissioner of Social Security, 17 Defendant. [ECF No. 3] 18 19 20 Plaintiff Edward C. (“Plaintiff”) has filed a Complaint against the Commissioner of 21 Social Security (the “Commissioner”) seeking judicial review of the Commissioner’s final 22 decision denying his application for social security disability insurance benefits. (See ECF 23 No. 1.) Before the Court is Plaintiff’s Motion for Leave to Proceed In Forma Pauperis 24 (“IFP Motion”). (ECF No. 3.) For the reasons set forth below, the Court DENIES 25 WITHOUT PREJUDICE Plaintiff’s IFP Motion. 26 I. LEGAL STANDARD 27 All parties instituting a civil action, suit, or proceeding in a district court of the 28 United States must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite 1 a party’s failure to pay the filing fee only if the party is granted leave to proceed in forma 2 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). Section 1915(a)(1) provides that: 3 any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or 4 security therefor, by a person who submits an affidavit that includes a 5 statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 6 7 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 8 assets to warrant IFP status, the determination of indigency falls within the district court’s 9 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 10 1915 typically requires the reviewing court to exercise its sound discretion in determining 11 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 12 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 13 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 14 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 15 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 16 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 17 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP status must allege poverty with 18 some particularity, definiteness[,] and certainty.” Escobedo, 787 F.3d at 1234 (internal 19 quotation marks and citation omitted). 20 II. DISCUSSION 21 Here, Plaintiff has not paid the $4051 filing fee required to maintain a civil action in 22 this District and has instead moved to proceed IFP. (ECF No. 3.) Plaintiff attests to the 23 following under penalty of perjury in his affidavit of assets: Plaintiff and his wife own a 24 25 1 See 28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties 26 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of 27 $350[.]”); CASD Fee Schedules, https://www.casd.uscourts.gov/_assets/pdf/attorney/ CASD%20FEE%20SCHEDULE.pdf) (imposing a $55 administrative fee for a civil action, 28 1 condo worth approximately $613,000 and a car worth approximately $3,000 to $4000. (Id. 2 at 2.) They live with their two minor children. (Id.) Plaintiff has no wages and does not 3 have any cash in a checking or savings account. (Id. at 1–2.) However, Plaintiff receives 4 food stamps for his household in the amount of $813 per month and CalWorks cash for his 5 household in the amount of $1,412 per month. (Id. at 1.) Plaintiff’s wife works 25 to 30 6 hours per week and makes minimum wage. (Id.) Therefore, assuming Plaintiff’s wife 7 makes at least $1,500 per month, the family’s monthly income is approximately $3,725. 8 (Id.) 9 Plaintiff lists his monthly expenses as follows: $1,285 per month in mortgage; $175 10 per month to San Diego Gas & Electric for trash and water; $813 in food; and $106 in car 11 insurance. (Id. at 2.) Plaintiff does not explicitly indicate who pays the monthly expenses, 12 but frequently refers to “we.” (Id.) Plaintiff’s listed monthly expenses total $2,379. 13 Plaintiff does not have any other debts or financial obligations. (Id.) 14 Based on the foregoing, it appears that Plaintiff’s monthly income exceeds his 15 monthly expenses by approximately $1,346. Given this calculation, the Court finds that 16 Plaintiff would be able to pay the filing fee and still afford the necessities of life. See Lovci 17 v. Kijakazi, No. 23-cv-1109-WQH-BGS, 2023 WL 5020612, at *2 (S.D. Cal. July 17, 18 2023) (denying without prejudice plaintiff’s motion to proceed IFP where plaintiff had 19 gross monthly income of $0 and her spouse had a gross monthly income of $2,947.20, 20 plaintiff and her spouse owned a home valued at $560,000 and three cars, and plaintiff did 21 not state that she did not have access to those assets). The IFP Motion is therefore denied. 22 However, Plaintiff’s IFP Motion does not include sufficient information about 23 whether Plaintiff’s wife’s income is available to him (i.e., they share household income 24 and expenses). The Ninth Circuit has held that whether spousal income may be considered 25 in the ability to pay inquiry is a fact question based on a particular plaintiff’s circumstances. 26 See Escobedo, 787 F.3d at 1236. As such, the Court finds it appropriate to deny Plaintiff’s 27 IFP Motion without prejudice. 28 /// 1 CONCLUSION 2 For the aforementioned reasons, Plaintiff's IFP Motion (ECF No. 3) is DENIED 3 || without prejudice. On or before January 10, 2025, Plaintiff must either (1) file a renewed 4 || motion for leave to proceed in forma pauperis or (2) pay the requisite filing fee, otherwise 5 || his case may be dismissed. 6 IT IS SO ORDERED. 7 ||Dated: December 9, 2024 - n. Jill L. Burkhardt ? ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28