Blevins v. O'Malley

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 BARBARA B., NO. 4:24-CV-5091-TOR 8 Plaintiff, ORDER DENYING IN FORMA 9 v. PAUPERIS STATUS

10 MARTIN O’MALLEY, Commissioner of Social Security, 11 Defendant. 12 BEFORE THE COURT is the Magistrate Judge’s Report and 13 Recommendation regarding Plaintiff’s application to proceed in forma pauperis. 14 ECF Nos. 2; 5. The Court has reviewed the record and files herein and is fully 15 informed. For the reasons discussed below, the Report and Recommendation 16 (“R&R”) (ECF No. 5) is ADOPTED in full and Plaintiff’s Application to Proceed 17 In Forma Pauperis (“IFP”) (ECF No. 2) is DENIED. 18 BACKGROUND 19 Pursuant to the delegation provided in this District’s Local Magistrate Judge 20 Rule 2(a)(7), the Magistrate Judge ruled on Plaintiff’s IFP application with the 1 recommendation that Plaintiff’s application be denied. Id. Plaintiff did not file an 2 objection within the time allotted.

3 DISCUSSION 4 “[A]ny court of the United States may authorize the commencement, 5 prosecution or defense of any suit, action or proceeding, civil or criminal, . . .

6 without prepayment of fees or security therefor.” 28 U.S.C. § 1915(a)(1). A 7 plaintiff may commence an action without paying the filing fees by submitting an 8 affidavit stating that she lacks sufficient funds and upon a finding that her suit is 9 not frivolous or malicious. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.

10 2015) (citation omitted). The affidavit is sufficient if it states that the plaintiff, 11 because of her poverty, cannot “pay or give security for the costs” and still be able 12 to provide for herself and dependents the “necessities of life.” Adkins v. E.I.

13 DuPont de Numours & Co., 335 U.S. 331, 339 (1948). The IFP statute does not 14 define what constitutes insufficient assets, but the Ninth Circuit has recognized that 15 “[o]ne need not be absolutely destitute to obtain benefits of the [IFP] statute.” 16 Escobedo, 787 F.3d at 1234 (citation omitted). Nevertheless, a plaintiff seeking

17 IFP status must allege poverty “with some particularity, definiteness and 18 certainty.” Id. (citation omitted) 19 Pursuant to Federal Rule of Civil Procedure 72, the district court “must

20 determine de novo any part of the magistrate judge’s disposition that has been 1 properly objected to” and “may accept, reject, or modify the recommended 2 disposition.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C). A party has

3 fourteen (14) days after service of a copy of the R&R to file and serve written 4 objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); 5 ECF No. 5 at 2. Failure to file objections within the specified time waives the right

6 to challenge the Magistrate Judge’s findings of fact. Turner v. Duncan, 158 F.3d 7 449, 455 (9th Cir. 1998). The failure to object to a pure legal conclusion, however, 8 is only “a factor to be weighed in considering the propriety of finding waiver of an 9 issue on appeal.” In re Grand Jury Subpoena (Mark Torf/Torf Env. Mgmt.), 357

10 F.3d 900, 910 (9th Cir. 2004) (quoting Martinez v. Ylst, 951 F.2d 1153, 1156 (9th 11 Cir. 1991)). 12 As mentioned, Plaintiff did not file objections within the fourteen-day time

13 frame. See ECF No. 5 at 2. The Court has reviewed Plaintiff’s application for IFP 14 status, which establishes that her monthly income exceeds $7,500 a month. ECF 15 No. 2 at 1. Therefore, the Court agrees with the Magistrate Judge’s conclusion that 16 Plaintiff has not established indigency and that she has sufficient means to cover

17 the Filing Fee and Administrative Fee required under 28 U.S.C. § 1914. 18 // 19 //

20 // ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. The Magistrate Judge’s Report and Recommendation, ECF No. 5, is 3 ADOPTED. 4 2. Plaintiff's Application to Proceed Jn Forma Pauperis, ECF No. 2, is 5 DENIED. Plaintiff SHALL PAY the full filing and administrative fee 6 within thirty (30) days of this Order. Absent timely compliance with this 7 Order, this action will be dismissed without further notice. 8 The District Court Executive is directed to enter this Order and furnish 9|| copies to the parties. The file remains OPEN. 10 DATED August 29, 2024.

Sa gp TO, 0 ee 12 On Ke THOMAS O. RICE <> United States District Judge 13 14 15 16 17 18 19 20