Johnson v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PETER J., Case No.: 23-cv-02240-JLB

13 Plaintiff, ORDER DENYING WITHOUT 14 v. PREJUDICE MOTION FOR LEAVE TO PROCEED IN FORMA 15 KILOLO KIJAKAZI, Acting PAUPERIS Commissioner of Social Security, 16 Defendant. [ECF No. 2] 17

18 19 Plaintiff Peter J. (“Plaintiff”) has filed a Complaint against the Commissioner of 20 Social Security (the “Commissioner”) seeking judicial review of the Commissioner’s final 21 decision denying his applications for social security disability insurance benefits and 22 supplemental security income. (See ECF No. 1.) Before the Court is Plaintiff’s Motion 23 for Leave to Proceed In Forma Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons 24 set forth below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion 25 (ECF No. 2). 26 I. Legal Standard 27 All parties instituting a civil action, suit, or proceeding in a district court of the 28 United States must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite 1 a party’s failure to pay the filing fee only if the party is granted leave to proceed in forma 2 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). Section 1915(a)(1) provides that: 3 any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or 4 security therefor, by a person who submits an affidavit that includes a 5 statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 6 7 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 8 assets to warrant IFP status, the determination of indigency falls within the district court’s 9 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 10 1915 typically requires the reviewing court to exercise its sound discretion in determining 11 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 12 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 13 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 14 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 15 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 16 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 17 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP status must allege poverty with 18 some particularity, definiteness[,] and certainty.” Escobedo, 787 F.3d at 1234 (internal 19 quotation marks and citation omitted). 20 II. Discussion 21 Here, Plaintiff has not paid the $4051 filing fee required to maintain a civil action in 22 this District and has instead moved to proceed IFP. (ECF No. 2.) Plaintiff attests to the 23 following under penalty of perjury in his affidavit of assets: He is not incarcerated, but has 24 25 1 See 28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties 26 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of 27 $350[.]”); CASD Fee Schedules, https://www.casd.uscourts.gov/_assets/pdf/attorney/ CASD%20FEE%20SCHEDULE.pdf) (imposing a $55 administrative fee for a civil action, 28 1 ||no wages or income, does not have any cash in a checking or savings account, does not 2 ||own an automobile, real estate, or other thing of value, and does not have any monthly 3 ||expenses or debts. (/d. at 1-2.) However, Plaintiff avers that he receives food stamps of 4 || approximately $200-$300 a month. (/d. at 1.) 5 Plaintiff's IFP Motion is devoid of any information about the resources indicating 6 || how he supports himself, beyond governmental assistance for food. In the absence of an 7 ||explanation of, for example, Plaintiff's living situation with no income and no expenses, 8 ||the Court is left with questions that could go to the accuracy and completeness of the 9 ||affidavit. The Court therefore finds that Plaintiffs affidavit of assets insufficiently 10 || demonstrates that he lacks the financial resources to pay the $405 filing fee without causing 11 undue financial hardship. Accordingly, Plaintiff’s IFP Motion is denied without prejudice. 12 Conclusion 13 For the aforementioned reasons, Plaintiff's IFP Motion (ECF No. 2) is DENIED 14 || without prejudice. On or before January 8, 2024, Plaintiff must either (1) file a renewed 15 || motion for leave to proceed in forma pauperis or (2) pay the requisite filing fee, otherwise 16 || his case may be dismissed. 17 IT IS SO ORDERED. 18 Dated: December 8, 2023 -

n. Jill L. Burkhardt 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28