Langford v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19cv1821-BLM 11 TIFFANI ANNE LANGFORD, 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO PROCEED 13 v. 14 ANDREW SAUL, Commissioner of Social [ECF No. 3] Security, 15 Defendant. 16 17 18 Plaintiff initiated the instant litigation on September 22, 2019, when she filed a complaint 19 against Defendant appealing the decision denying Plaintiff benefits. ECF No. 1. On the same 20 date, Plaintiff also filed a motion to proceed (“IFP”). ECF No. 3. Plaintiff was 21 notified that his case was assigned to Magistrate Judge Barbara L. Major pursuant to General 22 Order 707. ECF No. 2. Attached to the notice was a consent/declination form through which 23 Plaintiff had the choice to consent or decline magistrate jurisdiction. Id. On October 8, 2019, 24 Plaintiff filed her consent to magistrate judge jurisdiction. ECF No. 5. For the reasons set forth 25 below, this Court DENIES Plaintiff’s motion to proceed IFP. 26 MOTION TO PROCEED IN FORMA PAUPERIS 27 All parties instituting any civil action, suit, or proceeding in a district court of the United 28 States, except an application for writ of habeas corpus, must pay a filing fee. 28 U.S.C. 1 § 1915(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only if he 2 is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 3 [A]ny court of the United States may authorize the commencement, prosecution 4 or defense of any suit, action or proceeding … without prepayment of fees or 5 security therfor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees 6 or give security therfor. 7 8 The determination of indigency falls within the district court’s discretion. California Men’s 9 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 10 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 11 in determining whether the affiant has satisfied the statute’s requirement of indigency.”). It is 12 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 13 de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. 14 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 15 poverty pay or give security for costs . . . still be unable to provide for himself and dependents 16 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 17 be employed to assure that federal funds are not squandered to underwrite, at public expense 18 . . . , the remonstrances of a suitor who is financially able, in whole or in material part, to pull 19 his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend 20 to reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 21 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 22 initially permitted to proceed IFP, later required to pay $120 filing fee out of $900 settlement 23 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 24 the plaintiff possessed savings of $450 and that was more than sufficient to pay the filing fee). 25 Moreover, the facts as to the affiant’s poverty must be stated “with some particularity, 26 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 27 Plaintiff fails to satisfy her burden of demonstrating that she is entitled to IFP status. 28 Plaintiff submitted her application to proceed IFP, stating that she makes $19.42 per hour and 1 || works 40 hours per week. ECF No. 3 at 1. Plaintiff reports that she has three dependents who 2 ||rely on her for support, ages fourteen, fifteen, and seventeen, and that she has $0 in her 3 checking account after bills. Id. However, Plaintiff also reports that she has $17,000 in her 4 || savings and when listing other sources of income, Plaintiff states that her husband owns a UPS 5 ||store and his estimated annual income is $56,873. Id. at 1-2. In addition, though Plaintiff 6 ||makes a car payment of $440 per month, she also owns two separate vehicles valued at $3,000 7 $6,000. Id. After reviewing Plaintiff's financial background, the Court finds that IFP status 8 not appropriate, because Plaintiff has the resources to pay the filing fee by making acceptable 9 || sacrifices to other expenses. Allen, 1995 WL 396860 at *2; see also McCollough v. Colvin, 2016 10 |} WL 9458801, at *1 (S.D. Cal. May 19, 2016) (denying IFP status where Plaintiff had $495.22 in 11 || his checking account, $4881.30 in a money market, and was both unemployed and living with 12 || family). Accordingly, Plaintiff's motion to proceed IFP is DENIED. 13 CONCLUSION 14 For the reasons set forth above, the Court DENIES Plaintiff's motion to proceed IFP. 15 || Plaintiff must pay the filing fee as required by 28 U.S.C. § 1914(a) no later than November 17, 16 || 2019 or her case will be dismissed. 17 IT IS SO ORDERED. 18 Dated: 10/22/2019 sobre Me or 19 Hon. Barbara L. Major United States Maqistrate Judde 20 21 22 23 24 25 26 27 28