Macgillivray v. Kijakazi

Opinion

7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TAHNEE LANAE MACGILLIVRAY, ) Case No.: 3:22-cv-00257-BEN-JLB ) Plaintiff, 12 ) ORDER GRANTING MOTION TO 13 v. ) PROCEED IN FORMA PAUPERIS ) 14 KILOLO KIJAKAZI, Acting ) Commissioner of Social Security, 15 ) Defendant. ) ECF No. 5 16 ) 17 ) ) 18 19 Plaintiff Tahnee Lanae Macgillivray filed this civil action pursuant to 42 U.S.C. §§ 20 405(g) and 1383(c)(3) seeking review of the Commissioner of Social Security’s denial of 21 Plaintiff’s application for Social Security Benefits. ECF No. 1. Plaintiff did not pay the 22 required filing fee, nor did she seek leave to proceed in forma pauperis (“IFP”). On April 23 5, 2022, the Court dismissed the case but granted Plaintiff forty-five days leave to either 24 prepay the filing fee or move to proceed IFP. ECF No. 4. Plaintiff subsequently filed a 25 Motion to Proceed IFP, which is currently before the Court. ECF No. 5. 26 I. Motion to Proceed IFP 27 All parties initiating a civil action, suit, or proceeding in a United States District 28 Court must pay a filing fee. 28 U.S.C. § 1915(a). Without the filing fee, an action may 1 proceed only if the Plaintiff is granted leave to proceed IFP. Id. 2 The Court has discretion to determine indigency. California Men’s Colony v. 3 Rowland, 939 F.2d 854, 858 (9th Cir. 1991) rev’d on other grounds by 506 U.S. 194 (1993). 4 To satisfy 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient [if it] states that one 5 cannot because of his poverty pay or give security for costs . . . and still be able to provide 6 [for] himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de 7 Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted). “The facts as to 8 the affiant’s poverty must be stated with some particularity, definiteness, and certainty.” 9 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United 10 States, 277 F.2d 723, 725 (9th Cir. 1960)). 11 Here, Plaintiff has established she is entitled to IFP status. Plaintiff states she is 12 unemployed and the only income she receives for day-to-day expenses is from “family 13 help.” ECF No. 5 at 2–3. Plaintiff maintains she owns no property or vehicles, and her 14 current bank account balance is $100.00. Id. Plaintiff has therefore shown that paying the 15 $402.00 filing fee would impair her ability to pay for life’s necessities. See Adkins, 335 16 U.S. at 339–40. Accordingly, Plaintiff’s Motion to Proceed IFP is GRANTED. 17 II. Service 18 When a Plaintiff is granted IFP status, a United States Marshal, upon order of the 19 Court, must serve the summons and the Complaint. Fed. R. Civ. P. 4(c)(3); see also 28 20 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 21 all duties in such cases.”); Benny v. Pipes, 799 F.2d 489, 493 n.4 (9th Cir. 1986) 22 (authorizing “service by a Marshal for . . . a person proceeding in forma pauperis”). 23 The Court directs the Clerk of Court to issue the summons and provide Plaintiff with 24 an “IFP Package,” consisting of: (1) this Order; (2) a certified copy of the Complaint; (3) 25 the summons; and (4) a blank United States Marshal Service (“USMS”) Form 285. 26 Plaintiff is directed to complete the USMS Form 285 and forward it to the United States 27 Marshal. Upon receipt from Plaintiff, the United States Marshall shall serve a copy of the 28 Complaint and summons upon Defendant as directed by Plaintiff on the USMS Form 285. 1 || The United States will advance all costs of service. See 28 U.S.C. § 1915(d); Fed. R. Civ. 4(c)(3). 3 Plaintiff must serve upon the Defendant or, if appearance has been entered by counsel, upon Defendant’s counsel, a copy of every further pleading or other document 5 || submitted for consideration by the Court. Plaintiff must include with the original paper to 6|| be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of the document was served on the Defendant, or counsel for the Defendant, 8 || and the date of service. Any paper received by the Court which has not been properly filed 9 || with the Clerk, or which fails to include a Certificate of Service, may be disregarded. 10|| HI. Conclusion 11 Plaintiff's Motion to Proceed IFP is GRANTED. The Clerk of Court is ORDERED 12 || to direct service in conjunction with the foregoing. 13 IT IS SO ORDERED. ° 14 DATED: April 13, 2022 15 N. ROGER T. BENIPEZ 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -3-