Moran v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAMANTHA M.,1 Case No.: 23cv2182-LR

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT 14 KILOLO KIJAKAZI, Acting PREPAYING FEES OR COSTS Commissioner of Social Security, 15 Defendant. [ECF No. 2] 16 17 18 On November 28, 2023 Plaintiff Samantha M. (“Plaintiff”) filed a Complaint 19 pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of a decision by 20 the Commissioner of Social Security denying her application for a period of disability 21 and disability insurance benefits. (Compl., ECF No. 1.) Plaintiff simultaneously filed a 22 motion to proceed in forma pauperis (“IFP”). (ECF No. 2.) For the reasons set forth 23 below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion to proceed IFP. 24 / / / 25 / / / 26

27 1 In the interest of privacy, this order uses only the first name and initial of the last name of the non- 28 1 I. DISCUSSION 2 Parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 6 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). To that end, an 7 applicant must also provide the Court with a signed affidavit “that includes a statement of 8 all assets[,] which shows inability to pay initial fees or give security.” S.D. Cal. Civ. R. 9 3.2(a). An adequate affidavit should “allege[ ] that the affiant cannot pay the court costs 10 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 11 Cir. 2015) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 12 No exact formula is “set forth by statute, regulation, or case law to determine when 13 someone is poor enough to earn IFP status.” Escobedo, 787 F.3d at 1235. Consequently, 14 courts must evaluate IFP requests on a case-by-case basis. See id. at 1235–36. 15 An adequate affidavit should state supporting facts “with some particularity, 16 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 17 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should 18 not grant the IFP application of a claimant who is “financially able, in whole or in 19 material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 20 1984); see also Alvarez v. Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 21 (S.D. Cal. Oct. 1, 2018) (noting that courts often reject IFP applications when applicants 22 “can pay the filing fee with acceptable sacrifice to other expenses”). Additionally, courts 23 have discretion to deny a motion to proceed IFP when the moving party is “unable, or 24 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. 25 26 27 2 In addition to the $350.00 statutory fee, civil litigants must pay an additional administrative fee of $55.00. See 28 U.S.C. § 1914(b) (effective December 1, 2023). The additional $55.00 administrative 28 1 Plaintiff has not met her burden of demonstrating that she is entitled to IFP status. 2 || Plaintiff's application to proceed IFP reflects that she has no income and approximately 3 $3,200 in expenses each month. (See ECF No. 2. at 5.) The cash assets section of her 4 || application, however, notes that she has savings of over $121,640.00, and does not state 5 || that she is unable to access the funds in any of her bank accounts. (See ECF No. 2 at 2.) 6 || Accordingly, Plaintiff has failed to allege that she “cannot pay [the $405 filing fee] and 7 || still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 8 I. CONCLUSION 9 Because Plaintiff has failed to properly allege that she cannot afford to pay the 10 || filing fee in this case, the Court DENIES WITHOUT PREJUDICE Plaintiff's motion 11 proceed IFP. (ECF No. 2.) On or before January 19, 2024, Plaintiff must either: (a) 12 || pay the requisite filing fee, or (b) file a renewed IFP motion containing the requisite 13 ||information regarding her ability to pay the costs of commencing this action. If Plaintiff 14 || fails to timely submit payment or a renewed IFP motion, this case will be dismissed. 15 IT IS SO ORDERED. 16 ||Dated: December 15, 2023 17 18 / LZ 19 Honorable Lupe Rodriguez, Jr. 20 United States Magistrate Judge 21 22 23 24 25 26 27 28