Davis v. Saul

Opinion

2 (aa 3 "| squeal 4 5 . 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || DEBORA D.,! Case No.: 3:21-cv-00436-BEN-AHG Plaintt ORDER GRANTING PLAINTIFF'S 13 || APPLICATION TO PROCEED Sovial Sevuity, Commissioner of ORDERING VICE G FEES AND 16 Defendant. [ECF No. 2] 17 This matter was initiated on March 12, 2021, when Plaintiff filed a Complaint 18 || seeking judicial review of the Social Security Commissioner’s denial of her application 19 || for disability insurance benefits. ECF No. 1. Plaintiff also filed an Application to 20 || Proceed in the United States District Court without Prepaying Fees or Costs (the 21 ||*Application”), commonly referred to as in forma pauperis (“IFP”). ECF No. 2. As set 22 || forth below, Plaintiff's Application is granted. 23 LEGAL STANDARD 24 All parties initiating a civil action, suit, or proceeding in a United States District 25 27 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) 38 and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.

1 Court must pay a filing fee. 28 U.S.C. § 1915{a). Without the filing fee, an action may 2 proceed only if the Plaintiff is granted leave to proceed IFP. Jd. 3 The Court has discretion to determine indigency. California Men’s Colony v. 4 || Rowland, 939 F.2d 854, 858 (9th Cir. 1991) rev’d on other grounds by 506 U.S. 194 5 |/(1993) (“Section 1915 typically requires the reviewing court to exercise its sound 6 || discretion in determining whether the affiant has satisfied the statute’s requirement of 7 \|indigency”). To satisfy 28 U.S.C, § 1915(a), “an affidavit [of poverty] is sufficient [if it] 8 states that one cannot because of his poverty pay or give security for costs... and still be 9 || able to provide for himself and dependents with the necessities of life.” Adkins v. ET. 10 || DuPont de Nemours & Co,, 335 U.S. 331, 339 (1948). The facts as to the affiant's 11 poverty must be stated “with some particularity, definiteness, and certainty.” United 12 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 13 In cases involving a plaintiff who has sought and been granted IFP status, a United 14 || States Marshal, upon order of the Court, must serve the summons and the complaint. 15 R. Civ. P. 4(c)(3); see also 28 ULS.C. § 1915(d) (“The officers of the court shall 16 ||issue and serve all process, and perform all duties in such cases.”); Benny v. Pipes, 799 17 || F.2d 489, 493 n.4 (9th Cir. 1986) (permitting “service by a Marshal for,” inter alia, “a 18 || person proceeding in forma pauperis”). 19 |. = APPLICATION 20 According to Plaintiff's Application, her only income is $381.00 per month in 21 || public assistance and food stamps. ECF No. 2. She has no other property and attests that 22 |/she is homeless. Jd. As such, Plaintiff has satisfied her burden of showing she is entitled 23 ||to IFP status. The Court finds paying the $400.00 filing fee would impair her ability to 24 || pay for life’s necessities. See Adkins, 335 U.S. at 339-40. Accordingly, Plaintiff's 25 || Application is GRANTED. 26 Having granted leave to proceed IFP, the Court directs the Clerk of Court to issue 27 summons, provide Plaintiff with a certified copy of this Order and her Complaint 28 (ECF No. 1), and forward them to Plaintiff along with a blank United States Marshal 1 || Service (“USMS”) Form 285. Upon receipt of this “IFP Package,” the Court directs 2 || Plaintiff to complete the Form 285 and forward the IFP Package to the USMS. Upon 3 ||receipt from Plaintiff, the USMS will serve a copy of the complaint and summons upon 4 ||each Defendant as directed by Plaintiff on the USMS Form 285. The United States will 5 advance all costs of service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 6 Plaintiff must serve upon the defendant, or if appearance has been entered by 7 counsel, the defendant’s counsel, a copy of every further pleading or other document 8 || submitted for consideration by the Court. Plaintiff must include with the original paper 9 |; to be filed with the Clerk of the Court, a certificate stating the manner in which a true and 10 || correct copy of the document was served on the defendant, or counsel for the defendant, 11 || and the date of that service. Any paper received by the Court which has not been 12 || properly filed with the Clerk or fails to include a Certificate of Service may be 13 || disregarded. 14 CONCLUSION 15 Plaintiffs Motion to Proceed IFP is GRANTED. ECF No. 2. The Clerk of Court 16 ORDERED to direct service in conjunction with the foregoing. □ 17 IT IS SO ORDERED. .

19 Dated: April § , 2021 . ROGER T. BENITEZ 20 United States District Judge 21 22 23 24 25 26 27 28