Gomez v. Kijakazi

• Court: District Court, S.D. California
• Decided: November 13, 2020
• Docket: 3:20-cv-02207
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Anthony G., Case No.: 20cv2207-MDD

11 Plaintiff, ORDER DENYING WITHOUT 12 v. PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS 13 ANDREW SAUL, Commissioner of

Social Security, 14 [ECF No. 2] Defendant. 15 16 On November 12, 2020, Plaintiff Anthony G. (“Plaintiff”) filed this social 17 security appeal pursuant to Section 205(g) of the Social Security Act, 42 18 U.S.C. § 405(g), challenging the denial of his application for disability 19 insurance benefits. (ECF No. 1). Plaintiff simultaneously filed a motion to 20 proceed in forma pauperis (“IFP”). (ECF No. 2). For the reasons set forth 21 herein, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion to 22 proceed IFP. 23 DISCUSSION 24 All parties instituting any civil action, suit, or proceeding in a district 25 court of the United States, except an application for writ of habeas corpus, 26 1 must pay a filing fee of $400.1 See U.S.C. § 1914(a). An action may proceed 2 despite plaintiff’s failure to prepay the entire fee only if he is granted leave to 3 proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 4 1176, 1177 (9th Cir. 1999). “To proceed [IFP] is a privilege not a right.” 5 Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A party need not be 6 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & 7 Co., 335 U.S. 331, 339-40 (1948). But “the same even-handed care must be 8 employed to assure that federal funds are not squandered to underwrite, at 9 public expense, either frivolous claims or remonstrances of a suitor who is 10 financially able, in whole or in part, to pull his own oar.” Temple v. 11 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 12 As such, “the facts as to [an] affiant's poverty” must be stated “‘with 13 some particularity, definiteness, and certainty.’” United States v. McQuade, 14 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 15 F.2d 723, 725 (9th Cir. 1960)). “It is important for litigants applying to 16 proceed without prepaying fees and costs to accurately and honestly report 17 their income, assets, and expenses[.]” Archuleta v. Arizona, No. CV 19-05466 18 PHX CDB, 2019 U.S. Dist. LEXIS 186262, at *1 (D. Ariz. Oct. 25, 2019). An 19 applicant must "[c]omplete all questions" in his application and "not leave 20 any blanks[.]" Id. 21 Plaintiff has not met his burden. He does not explain the source of his 22 funds for his day-to-day expenses, which total $1,333, despite his claim that 23 he has had no income for at least one year. Nor does he specify any debts 24

25 1 In addition to the $350.00 statutory fee, civil litigants must pay an additional 26 administrative fee of $50.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50.00 1 |[owed. Asa result, the Court cannot determine Plaintiff is indigent with 2 ||certainty. McQuade, 647 F.2d at 940. 3 CONCLUSION 4 Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiffs 5 ||}motion to proceed IFP. On or before November 27, 2020, Plaintiff must 6 either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for 7 || [FP containing the requisite information regarding his ability to pay the costs g commencing this action. If Plaintiff fails to timely submit payment or a g ||renewed motion for IFP, this case will be dismissed. 10 IT IS SO ORDERED. Dated: November 13, 2020 Mitel by. [ Hon. Mitchell D. Dembin 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27