Roberts v. Social Security Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TINA LOUISE ROBERTS, Case No.: 22-CV-1123 JLS (KSC)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS; 14 SOCIAL SECURITY DEPARTMENT; (2) DISMISSING ACTION BERYLE; CARLOS MENDINE; 15 WITHOUT PREJUDICE FOR ALLIENA MARTINEZ; and FAILURE TO PAY FILING FEES 16 JOHN, Social Rep., REQUIRED BY 28 U.S.C. § 1914(a); 17 Defendants. AND (3) DENYING AS MOOT REQUEST FOR APPOINTMENT 18 OF COUNSEL 19 20 (ECF Nos. 2, 3) 21 22 Presently before the Court are Plaintiff Tina Louise Roberts’ Motion to Proceed in 23 Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2) and Request for Appointment of Counsel 24 (“Counsel Mot.,” ECF No. 3). Having carefully considered Plaintiff’s IFP Motion and the 25 applicable law the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion, 26 DENIES AS MOOT Plaintiff’s Counsel Motion, and DISMISSES WITHOUT 27 PREJUDICE Plaintiff’s Complaint for the reasons that follow. 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 All parties instituting a civil action, suit, or proceeding in a district court of the 3 United States, other than a petition for writ of habeas corpus, must pay a filing fee of $402.1 4 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 5 only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). 6 Section 1915(a)(1) provides: 7 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 8 proceeding . . . without prepayment of fees or security therefor, 9 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 10 such fees or give security therefor. 11 12 As §1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 13 status, the determination of indigency falls within the district court’s discretion. See Cal. 14 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 15 requires the reviewing court to exercise its sound discretion in determining whether the 16 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 17 by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where 18 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 19 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 20 de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to 21 obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 22 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 23 particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 24 / / / 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 1 In her IFP Motion, Plaintiff attests to receiving an illegible amount of monthly 2 public-assistance: “2.4.0.00.” IFP Mot. at 2.2 She avers that has $456.00 in cash, id., and 3 owns a motor vehicle worth $3,200.00, id. at 4. Her claimed monthly expenses are “uni” 4 for utilities, $24.00 for food, $240.00 for clothing, $40.00 for laundry and dry-cleaning, an 5 illegible “$2.45.4.20” for medical and dental expenses, $32.00 for transportation, and 6 $25.00 for recreation and entertainment. Id. at 3. 7 Plaintiff also has filed a Counsel Motion supported by an “Affifavit [sic] in Support 8 of Request for Counsel” that indicates that Plaintiff has received approximately $12,000 in 9 income in the past twelve months, although Plaintiff fails to specify the source of those 10 funds. Counsel Mot. at 4. Plaintiff fails to provide any answer as to how much money she 11 owns and claims not to “own or have any interest in any . . . automobiles.” Id. at 5. She 12 also claims monthly living expenses totaling $1,200.12, comprised of $95.00 for her cell 13 phone, $32.00 for a bus pass, $25.00 for laundry, and $901.00 that is unspecified. Id. at 6. 14 In light of the foregoing, the Court finds that Plaintiff does not allege poverty with 15 particularity, definiteness, or certainty and, therefore, is not entitled to proceed IFP at this 16 time. Not only is the Court unable to decipher important portions of Plaintiff’s financial 17 affidavits, such as her monthly income, but there are significant discrepancies between the 18 financial figures provided in the IFP Motion and the Counsel Motion that Plaintiff fails to 19 explain and which the Court is unable to reconcile. 20 In short, because the Court cannot ascertain Plaintiff’s assets, income, and expenses, 21 the Court cannot decide, on the record presently before it, that Plaintiff would be unable to 22 pay court costs and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 23 Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion and 24 DISMISSES WITHOUT PREJUDICE this civil action in light of Plaintiff’s failure to 25 pay the filing fees required by 28 U.S.C. § 1914(a). See, e.g., Stika v. McCauley, No. 19- 26 27 28 2 In citing to page numbers, the Court will refer to the blue numbers stamped by the CM/ECF system in 1 || CV-00677-GPC-LL, 2020 WL 2079390, at *1 (S.D. Cal. Apr. 30, 2020) 2 || (“dismiss[ing] .. . [a]ction without prejudice for failure to pay the mandatory fee’). 3 REQUEST FOR APPOINTMENT OF COUNSEL 4 As noted supra, Plaintiff also has filed a request for appointment of counsel. See 5 || generally Counsel Mot. Since the Court dismisses Plaintiff's Complaint, however, the 6 || Court also DENIES AS MOOT Plaintiff's request for appointment of counsel, without 7 || prejudice to Plaintiff renewing said motion should she elect to reopen this case and should 8 ||she satisfy the criteria for this Court’s discretionary appointment of counsel in a civil case. 9 CONCLUSION 10 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE □□□□□□□□□□ □ 11 |}|Motion to Proceed IFP (ECF No. 2) and DISMISSES WITHOUT PREJUDICE this 12 || action in light of Plaintiff's failure to pay the filing fees required by 28 U.S.C. § 1914(a). 13 || Furthermore, the Court DENIES AS MOOT Plaintiffs Request for Appointment of 14 || Counsel (ECF No. 3). 15 The Court GRANTS Plaintiff thirty (30) days from the date on which this Order is 16 |/electronically docketed to reopen this matter by either (1) filing a properly supported 17 ||motion to proceed IFP or (2) paying the full $402 civil filing and administrative fee 18 required by 28 U.S.C. § 1914(a). If Plaintiff chooses not to comply with this Order by 19 || either paying the full $402 civil filing and administrative fee or submitting a complete 20 || motion to proceed IFP within thirty (30) days of the date of this Order, this civil action 21 || will remain dismissed without prejudice and without further order of the Court based on 22 || Plaintiff’s failure to comply with 28 U.S.C. § 1914(a). 23 IT IS SO ORDERED. 24 ||Dated: September 6, 2022 . tt f te 25 on. Janis L. Sammartino %6 United States District Judge 27 28