Grasser v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMBER G., Case No.: 21-cv-1190-BGS 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS 14 ANDREW SAUL, Commissioner of Social Security, 15 [ECF No. 2] Defendant. 16 18 19 On June 29, 2021, Plaintiff Amber G. filed a Complaint seeking judicial review of a 20 decision by the Commissioner of Social Security denying Plaintiff’s application for 21 disability benefits. (ECF No. 1.) Plaintiff has not paid the civil filing fee required to 22 commence this action. Before this Court is a Motion to Proceed In Forma Pauperis (“IFP”) 23 filed by Plaintiff. (ECF No. 2.) 24 All parties instituting any civil action, suit, or proceeding in a district court of the 25 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 26 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 27 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 28 a plaintiff’s failure to prepay the entire fee only if plaintiff is granted leave to proceed IFP 1 pursuant to 28 U.S.C. § 1915(a), which states: 2 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without 3 prepayment of fees or security therefor, by a person who submits an affidavit 4 that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 5 6 28 U.S.C. § 1915(a)(1). The determination of indigency falls within the district 7 court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), 8 reversed on other grounds by, 506 U.S. 194 (1993) (“Section 1915 typically requires the 9 reviewing court to exercise its sound discretion in determining whether the affiant has 10 satisfied the statute’s requirement of indigency.”). 11 A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont 12 de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP 13 status must allege poverty ‘with some particularity, definiteness, and certainty.’” 14 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. 15 McQuade, 647 f.3D 938, 940 (9th Cir. 1981). “An affidavit in support of an IFP 16 application is sufficient where it alleges that the affiant cannot pay the court costs and 17 still afford the necessitates of life.” Id. “But, the same even-handed care must be 18 employed to assure that federal funds are not squandered to underwrite, at public 19 expense, either frivolous claims or the remonstrances of a suitor who is financially able, 20 in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. Supp. 848, 850 (D. 21 R.I.) 22 Based on the information provided (ECF 2), the Court finds that Plaintiff is unable 23 to pay the required filing fee. See, e.g., Jefferson, 277 F.2d at 725 (“One need not be 24 absolutely destitute to obtain [the] benefits of the in forma pauperis statute.”); Escobedo v. 25 Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (noting “there is no formula set forth by 26 statute, regulation, or case law to determine when someone is poor enough to earn IFP 27 status,” but, “[w]hatever the standard, $350 is a lot of money to many millions of 28 Americans”). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF 1 || No. 2) and ORDERS as follows: 2 1. The United States Marshal shall serve a copy of the Complaint filed on June 3 2021 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. 4 || Marshal Form 285. All costs of service shall be advanced by the United States. 5 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by 6 ||counsel, upon Defendant’s counsel, a copy of every further pleading or document 7 ||submitted for consideration of the Court. Plaintiff shall include with the original paper to 8 filed with the Clerk of Court a certificate stating the manner in which a true and correct 9 ||copy of any document was served on Defendant or Defendant’s counsel and the date of 10 || service. 11 IT IS SO ORDERED. 12 Dated: July 14, 2021 p / / 13 on. Bernard G. Skomal 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28