Collings v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY COLLINGS, Case No.: 3:23-cv-01076-JES (AHG) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S 13 v. MOTION FOR LEAVE TO 14 KILOLO KIJAKAZI, PROCEED IN FORMA PAUPERIS Acting Commissioner of Social Security, 15 [ECF No. 2] Defendant. 16 17 18 Before the Court is Plaintiff’s Motion for Leave to Proceed in forma pauperis 19 (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. Upon review, the Court finds the application 20 insufficient to determine whether Plaintiff has properly shown an inability to pay the 21 $402 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a), and will 22 accordingly deny the motion without prejudice to refiling. 23 A plaintiff in this Court seeking to proceed IFP must provide the Court with a signed 24 affidavit “that includes a statement of all assets[,] which shows inability to pay initial fees 25 or give security.” CivLR 3.2(a). Among other requirements, the affidavit must contain “[a] 26 statement as to current employment including the amount of wages or salary per month 27 and the name and address of the current employer[,]” or, if the applicant is not currently 28 employed, the affidavit must provide “[a] statement [] as to the date of last employment 1 and the amount of wages or salary per month which was received.” CivLR 3.2(a)(1)-(2). 2 The affidavit must also include “[a] statement as to any cash in possession and as to any 3 money in a financial institution, including checking, savings, and any other accounts.” 4 CivLR 3.2(a)(4). If there are persons who depend upon the declarant for support, the 5 statement “must include the relationship of the dependents and the amount contributed 6 toward their support.” CivLR 3.2(a)(6). Additionally, Form AO 239, which is this Court’s 7 form Application to Proceed in District Court Without Prepaying Fees or Costs (Long 8 Form), states clearly in the “Instructions” section that the applicant must “[c]omplete all 9 questions in this application and then sign it. Do not leave any blanks: if the answer to a 10 question is “0,” “none,” or “not applicable (N/A),” write that response.” See ECF No. 2 at 11 1 (emphasis added). 12 Here, although Plaintiff provided some information about his monthly income and 13 expenses on the IFP application, he left the majority of questions on the application blank. 14 See generally ECF No. 2. For example, Plaintiff does not indicate whether he has a spouse 15 and whether any such spouse has any sources of income or employment history, whether 16 Plaintiff is currently employed or, if not employed, when he was last employed and the 17 amount of wages or salary per month received when last employed, whether he and/or his 18 spouse have any bank accounts at any financial institutions,1 or the amount contributed to 19 support his two adult sons, whom he lists as dependents on the application. Id. 20 “When a claim of poverty is made under section 1915[,] ‘it is proper and indeed 21 essential for the supporting affidavits to state the facts as to affiant’s poverty with some 22

23 1 Plaintiff did provide the answer “$0.00” in response to the question, “How much cash do 24 you and your spouse have?” ECF No. 2 at 2. However, he left all entries regarding financial 25 institutions, types of account, and account balances blank. Id. If Plaintiff and/or his spouse have no bank accounts, Plaintiff should state “not applicable” or “N/A” in the blanks 26 provided, rather than leaving them blank. If, on the other hand, Plaintiff and/or his spouse 27 have bank accounts with zero or negative account balances, he should provide the name of the relevant financial institution(s), type of account(s), and the zero or negative balances in 28 1 || particularity, definiteness and certainty.’” United States v. McQuade, 647 F.2d 938, 940 2 ||(9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). 3 || Here, the Court finds that Plaintiff’s affidavit provided in support of the Motion to Proceed 4 || IFP does not state the facts with sufficient particularity and definiteness to allow the Court 5 || to verify Plaintiffs indigence. 6 Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion to 7 || Proceed IFP (ECF No. 2). To proceed with this action, no later than July 26, 2023, Plaintiff 8 || must either pay the filing fee, or he must re-file the Motion to Proceed IFP without leaving 9 || any blanks and with complete information in compliance with Civil Local Rule 3.2(a). 10 IT IS SO ORDERED. 11 1 Dated: July 11, 2023 4 Sin 4, 13 Honorable James E. Simmons, Ir 14 Unites States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28