1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHAEL H., Case No.: 22-cv-00977-JLB
14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 16 KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 17 [ECF No. 2] Defendant. 18
19 20 Plaintiff Michael H. (“Plaintiff”) has filed a Complaint against Kilolo Kijakazi, the 21 Acting Commissioner of Social Security (“Commissioner”), seeking judicial review of the 22 Commissioner’s final decision denying his application for social security disability 23 insurance benefits under the Social Security Act. (ECF No. 1.) The parties have consented 24 to the disposition of the case by Magistrate Judge Jill L. Burkhardt pursuant to 28 U.S.C. 25 § 636(c). (ECF No. 4.) 26 Presently before the Court is Plaintiff’s Motion for Leave to proceed In Forma 27 Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons set forth below, the Court 28 DENIES Plaintiff’s IFP Motion. 1 I. LEGAL STANDARD 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. 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 in forma pauperis (“IFP”) pursuant to 28 U.S.C. 6 § 1915(a)(1). Section 1915(a)(1) provides that: 7 any court of the United States may authorize the commencement, prosecution 8 or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a 9 statement of all assets such [person] possesses that the person is unable to pay 10 such fees or give security therefor. 11 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 12 assets to warrant IFP status, the determination of indigency falls within the district court’s 13 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 14 1915 typically requires the reviewing court to exercise its sound discretion in determining 15 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 16 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 17 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 18 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 19 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 20 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 21 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with 22 some particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. DISCUSSION 2 Here, Plaintiff has not paid the $4021 filing fee required to maintain a civil action in 3 this District and has instead moved to proceed IFP. (ECF No. 2.) Plaintiff attests to the 4 following under penalty of perjury in his affidavit of assets: He is unemployed, but he 5 receives $3,950 per month in disability benefits. (Id. ¶¶ 1, 2.) His wife currently works at 6 Kaiser Permanente and makes $7,600 per month. (Id. ¶¶ 2, 3.) Plaintiff has $25,000 in his 7 savings account and $450 in his checking account. (Id. ¶ 4.) Plaintiff’s wife has $5,000 in 8 her savings account and $200 in her checking account. (Id.) Plaintiff claims that he and 9 his wife do not have any assets, including a home or vehicle, but later asserts that he and 10 his wife bought their home when they were both fully employed. (Id. ¶¶ 5, 11.) Plaintiff 11 and his wife support three minor children. (Id. ¶ 7.) 12 Plaintiff and his wife almost evenly split their mortgage payment of $3,950 (total) 13 per month. (Id. ¶ 8.) Plaintiff spends $560 per month on a motor vehicle, $200 per month 14 on transportation, and $90 per month on vehicle insurance. (Id.) Plaintiff also spends $420 15 per month on utilities and home maintenance, while his wife spends $480. (Id.) Plaintiff 16 and his wife each spend $450 per month on food, $150 on clothing, $30 on dry cleaning, 17 $60 on taxes, and $100 on homeowner’s insurance. (Id.) Plaintiff spends $50 per month 18 on recreation, $25 per month on medical and dental expenses, and $100 per month on his 19 credit card. (Id.) Plaintiff’s wife spends $100 per month on recreation, $150 per month on 20 medical and dental expenses, $500 per month on her credit card, $640 per month on her 21 motor vehicle, $500 per month on transportation, $90 per month in motor vehicle 22 insurance, $180 per month in life insurance, and $120 per month in health insurance. (Id.) 23 24 25 1 See 28 U.S.C. § 1914(a) (“The clerk of each district shall require the parties 26 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $350[.]”); CASD Fee Schedule, https://www.casd.uscourts.gov/_assets/pdf/courtinfo/ 27 Fees%20of%20the%20U.S.% 20District%20Court%20(CASD).pdf (eff. May 24, 2021) 28 (imposing a $52 administrative fee for filing a civil action, suit, or proceeding). 1 Plaintiff’s wife also spends $800 per month on their children’s activities. (Id.) 2 Collectively, Plaintiff and his wife spend $45 more than they take in each month. (Id.) 3 The Court finds that Plaintiff’s affidavit of assets reflects that he can pay the court 4 filing fee and still afford the necessities of life. Although Plaintiff claims that he often 5 borrows from his savings for bills, he does not meet the threshold for alleging poverty.2 6 (See ECF No. 2 ¶ 11.) Notably, Plaintiff states that he has $25,000 in his personal savings 7 account and receives $3,950 per month in disability benefits (which amounts to $47,400 8 per year).3 See, e.g., Tod M. v. Kijakazi, No. 21-cv-1997-LL, 2021 WL 6622288, at *1 9 (S.D. Cal. Dec. 20, 2021) (denying IFP motion where the plaintiff’s monthly expenses are 10 approximately $200 for food, which he pays for with food stamps, but he has assets 11 including a home valued at $250,000, a vehicle valued at $1,500, and a second vehicle 12 valued at $1,200); Martin v. Franks, No. 10-cv-1408-BEN (BGS), 2010 WL 2730647, at 13 *1 (S.D. Cal. July 9, 2010) (denying IFP motion where the plaintiff receives $1,591.50 per 14 month in social security and has a bank account with a balance of approximately $300). 15 According, Plaintiff’s IFP Motion is DENIED.4 16 /// 17
18 2 Although permissible, the Court does not need to consider Plaintiff’s spouse’s assets 19 to reach its conclusion.
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHAEL H., Case No.: 22-cv-00977-JLB
14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 16 KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 17 [ECF No. 2] Defendant. 18
19 20 Plaintiff Michael H. (“Plaintiff”) has filed a Complaint against Kilolo Kijakazi, the 21 Acting Commissioner of Social Security (“Commissioner”), seeking judicial review of the 22 Commissioner’s final decision denying his application for social security disability 23 insurance benefits under the Social Security Act. (ECF No. 1.) The parties have consented 24 to the disposition of the case by Magistrate Judge Jill L. Burkhardt pursuant to 28 U.S.C. 25 § 636(c). (ECF No. 4.) 26 Presently before the Court is Plaintiff’s Motion for Leave to proceed In Forma 27 Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons set forth below, the Court 28 DENIES Plaintiff’s IFP Motion. 1 I. LEGAL STANDARD 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. 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 in forma pauperis (“IFP”) pursuant to 28 U.S.C. 6 § 1915(a)(1). Section 1915(a)(1) provides that: 7 any court of the United States may authorize the commencement, prosecution 8 or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a 9 statement of all assets such [person] possesses that the person is unable to pay 10 such fees or give security therefor. 11 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 12 assets to warrant IFP status, the determination of indigency falls within the district court’s 13 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 14 1915 typically requires the reviewing court to exercise its sound discretion in determining 15 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 16 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 17 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 18 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 19 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 20 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 21 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with 22 some particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. DISCUSSION 2 Here, Plaintiff has not paid the $4021 filing fee required to maintain a civil action in 3 this District and has instead moved to proceed IFP. (ECF No. 2.) Plaintiff attests to the 4 following under penalty of perjury in his affidavit of assets: He is unemployed, but he 5 receives $3,950 per month in disability benefits. (Id. ¶¶ 1, 2.) His wife currently works at 6 Kaiser Permanente and makes $7,600 per month. (Id. ¶¶ 2, 3.) Plaintiff has $25,000 in his 7 savings account and $450 in his checking account. (Id. ¶ 4.) Plaintiff’s wife has $5,000 in 8 her savings account and $200 in her checking account. (Id.) Plaintiff claims that he and 9 his wife do not have any assets, including a home or vehicle, but later asserts that he and 10 his wife bought their home when they were both fully employed. (Id. ¶¶ 5, 11.) Plaintiff 11 and his wife support three minor children. (Id. ¶ 7.) 12 Plaintiff and his wife almost evenly split their mortgage payment of $3,950 (total) 13 per month. (Id. ¶ 8.) Plaintiff spends $560 per month on a motor vehicle, $200 per month 14 on transportation, and $90 per month on vehicle insurance. (Id.) Plaintiff also spends $420 15 per month on utilities and home maintenance, while his wife spends $480. (Id.) Plaintiff 16 and his wife each spend $450 per month on food, $150 on clothing, $30 on dry cleaning, 17 $60 on taxes, and $100 on homeowner’s insurance. (Id.) Plaintiff spends $50 per month 18 on recreation, $25 per month on medical and dental expenses, and $100 per month on his 19 credit card. (Id.) Plaintiff’s wife spends $100 per month on recreation, $150 per month on 20 medical and dental expenses, $500 per month on her credit card, $640 per month on her 21 motor vehicle, $500 per month on transportation, $90 per month in motor vehicle 22 insurance, $180 per month in life insurance, and $120 per month in health insurance. (Id.) 23 24 25 1 See 28 U.S.C. § 1914(a) (“The clerk of each district shall require the parties 26 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $350[.]”); CASD Fee Schedule, https://www.casd.uscourts.gov/_assets/pdf/courtinfo/ 27 Fees%20of%20the%20U.S.% 20District%20Court%20(CASD).pdf (eff. May 24, 2021) 28 (imposing a $52 administrative fee for filing a civil action, suit, or proceeding). 1 Plaintiff’s wife also spends $800 per month on their children’s activities. (Id.) 2 Collectively, Plaintiff and his wife spend $45 more than they take in each month. (Id.) 3 The Court finds that Plaintiff’s affidavit of assets reflects that he can pay the court 4 filing fee and still afford the necessities of life. Although Plaintiff claims that he often 5 borrows from his savings for bills, he does not meet the threshold for alleging poverty.2 6 (See ECF No. 2 ¶ 11.) Notably, Plaintiff states that he has $25,000 in his personal savings 7 account and receives $3,950 per month in disability benefits (which amounts to $47,400 8 per year).3 See, e.g., Tod M. v. Kijakazi, No. 21-cv-1997-LL, 2021 WL 6622288, at *1 9 (S.D. Cal. Dec. 20, 2021) (denying IFP motion where the plaintiff’s monthly expenses are 10 approximately $200 for food, which he pays for with food stamps, but he has assets 11 including a home valued at $250,000, a vehicle valued at $1,500, and a second vehicle 12 valued at $1,200); Martin v. Franks, No. 10-cv-1408-BEN (BGS), 2010 WL 2730647, at 13 *1 (S.D. Cal. July 9, 2010) (denying IFP motion where the plaintiff receives $1,591.50 per 14 month in social security and has a bank account with a balance of approximately $300). 15 According, Plaintiff’s IFP Motion is DENIED.4 16 /// 17
18 2 Although permissible, the Court does not need to consider Plaintiff’s spouse’s assets 19 to reach its conclusion. See Escobedo, 787 F.3d at 1236 (holding “a reasonable inquiry 20 into the actual availability of the spouse’s assets must be made” only if a court relies “on the income or assets of a litigant’s spouse to assess eligibility for IFP status”). 21 3 See 2022 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (2022 federal 22 poverty guideline for a household of five is $32,470 per year). 4 The Court has also reviewed Plaintiff’s complaint and concludes it is not subject to 23 sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B). The Court must screen every civil 24 action brought pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary 25 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see 26 also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th 27 Cir. 2000) (en banc) (noting that “section 1915(e) not only permits but requires a district 28 court to dismiss an in forma pauperis complaint that fails to state a claim”). 1 CONCLUSION 2 For the reasons stated above, the Court hereby DENIES Plaintiff's IFP Motion (ECF 3 2). Plaintiff shall pay the filing fee within 30 days of the date this Order is docketed. 4 || Ifthe filing fee is not paid by this date, the Clerk of the Court shall dismiss the case without 5 || prejudice and close the case without further order from the Court. 6 IT IS SO ORDERED. 7 ||Dated: August 24, 2022 pb brand 9 n. Jill L. Burkhardt 10 ited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28