Silva v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LISA SILVA, Case No.: 22-cv-1644-BGS 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 [ECF No. 2] Defendant. 16 17 18 Plaintiff has filed a Complaint seeking judicial review of a decision by the 19 Commissioner of Social Security denying his application for disability benefits. (ECF No. 20 1.) Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 2.) 21 All parties instituting any civil action, suit, or proceeding in a district court of the 22 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 23 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 24 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 25 a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP 26 pursuant to 28 U.S.C. § 1915(a), which states: 27 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without 28 1 prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person 2 is unable to pay such fees or give security therefor. 3 28 U.S.C. § 1915(a)(1). The determination of indigency falls within the district 4 court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), 5 reversed on other grounds by, 506 U.S. 194 (1993). A party need not “be absolutely 6 destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 7 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some 8 particularity, definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 9 (9th Cir. 2015) (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981). “An 10 affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot 11 pay the court costs and still afford the necessitates of life.” Id. “But, the same even-handed 12 care must be employed to assure that federal funds are not squandered to underwrite, at 13 public expense, either frivolous claims or the remonstrances of a suitor who is financially 14 able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. Supp. 848, 850 15 (D. R.I. 1984). 16 Based on the information provided (ECF 2), the Court finds that Plaintiff is unable 17 to pay the required filing fee. See, e.g., Jefferson v. U.S., 277 F.2d 723, 725 (1960) (“One 18 need not be absolutely destitute to obtain [the] benefits of the in forma pauperis statute.”); 19 Escobedo, 787 F.3d at 1235 (noting “there is no formula set forth by statute, regulation, or 20 case law to determine when someone is poor enough to earn IFP status,” but, “[w]hatever 21 the standard, $350 is a lot of money to many millions of Americans”). Accordingly, the 22 Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 23 In light of the Court’s ruling on the IFP motion, IT IS FURTHER ORDERED: 24 1. The United States Marshal shall serve a copy of the Complaint (ECF 1) and 25 an accompanying summons upon Defendant as directed by Plaintiff on U.S. Marshal Form 26 285. All costs of service shall be advanced by the United States. 27 /// 28 l 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by 2 ||counsel, upon Defendant’s counsel, a copy of every further pleading or document 3 ||submitted for consideration of the Court. Plaintiff shall include with the original paper to 4 ||be filed with the Clerk of Court a certificate stating the manner in which a true and correct 5 of any document was served on Defendant or Defendant’s counsel and the date of 6 || service. Any paper received by a District Judge or Magistrate Judge that has not been filed 7 || with the Clerk or that fails to include a Certificate of Service will be disregarded. 8 9 Dated: December 8, 2022 p / / 10 on. Bernard G. Skomal 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28