Norgard v. Colvin

• Court: District Court, S.D. California
• Decided: February 12, 2025
• Docket: 3:24-cv-02491
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CONSTANCE N.,1 Case No.: 3:24-cv-02491-VET

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE APPLICATION TO PROCEED IN FORMA PAUPERIS 14 CAROLYN COLVIN, Acting

Commissioner of Social Security, 15 [Doc. No. 3] Defendant. 16 17 18 19

21 22 23 24 25

26 27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405(g) (2022)] will refer to any non-government parties by 28 1 On December 30, 2024, Plaintiff Constance N. (“Plaintiff”) filed this action, seeking 2 judicial review of the Commissioner of Social Security’s (“Commissioner”) final decision 3 denying her application for disability insurance benefits (“Complaint”). Doc. No. 1. Before 4 the Court is Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or 5 Costs under 28 U.S.C. § 1915. Doc. No. 3 (“IFP Application”). For the reasons stated 6 below, the Court DENIES WITHOUT PREJUDICE the IFP Application. 7 I. DISCUSSION 8 Except for writ of habeas corpus applications, all parties instituting a civil action, 9 suit, or proceeding in a United States district court must pay a filing fee of $405.2 See 28 10 U.S.C. § 1914(a). An action may proceed without paying the filing fee only if the party is 11 granted in forma pauperis (“IFP”) status. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 12 Cir. 1999). 13 To proceed IFP, an applicant does not need to be “absolutely destitute” but must 14 adequately prove her indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 15 339–40 (1948). To that end, an applicant must provide the Court with a signed affidavit 16 “that includes a statement of all assets which shows inability to pay initial fees or give 17 security.” CivLR 3.2.a. The affidavit proving indigence should allege “that the affiant 18 cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 19 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339); see also Jefferson v. 20 United States, 277 F.2d 723, 725 (9th Cir. 1960) (an adequate affidavit should state 21 supporting facts “with some particularity, definiteness and certainty”). No exact formula is 22 “set forth by statute, regulation, or case law to determine when someone is poor enough to 23

24 25 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a); see also U.S. COURTS, DISTRICT COURT 26 MISCELLANEOUS FEE SCHEDULE § 14 (effective Dec. 1, 2023), available at 27 https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee- schedule. The additional $55 administrative fee does not apply to persons granted leave 28 1 earn IFP status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP 2 requests on a case-by-case basis. See id. at 1235–36 (declining to implement a general 3 benchmark of “twenty percent of monthly household income”); see also Cal. Men’s Colony 4 v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate 5 indigency based upon available facts and by exercise of their “sound discretion”), rev’d on 6 other grounds, 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 7 1974). 8 In support of the IFP Application, Plaintiff represents that she has no wages, but her 9 spouse earns $6,400 a month from his job at an automative shop. Doc. No. 3 at 2. Whether 10 spousal income may be considered in the ability to pay inquiry is a fact question based on 11 a particular plaintiff’s circumstances. See Escobedo, 787 F.3d at 1236. Here, Plaintiff’s 12 affidavit suggests that her spouse’s income is available to her. In fact, Plaintiff lists no 13 expenses for basic necessities and instead her affidavit shows that her spouse incurs and 14 presumably pays for Plaintiff’s basic necessities, including rent, utilities, food, and 15 clothing. Doc. No. 3 at 4–5. The household reported monthly expenses include rent, 16 utilities, clothing, food, transportation, and medical expenses, estimated to total $5,620 per 17 month. Id. at 5. As assets, Plaintiff lists a 2018 Chevy Suburban and a 2016 Toyota 18 4Runner, both with an estimated value of $32,000-$35,000. Id. at 3. Additionally, Plaintiff 19 represents that she and her spouse have over $1,000 in a bank account. Id. at 2. Plaintiff 20 also has two minor children. 21 Based on the foregoing, it appears that Plaintiff’s spouse shares his income with her 22 and thus the spouse’s income should be included in evaluating the IFP Application. If the 23 Court includes Plaintiff’s spouse’s monthly earnings, then Plaintiff’s available monthly 24 income exceeds her and her spouse’s monthly expenses by approximately $780, almost 25 double the filing fee. This amount is in addition to the $1199 available to Plaintiff in a bank 26 account, which is nearly three times the filing fee. Given these calculations, Plaintiff is 27 seemingly able to pay the filing fee and still afford the necessities of life. See Edward C. v. 28 Colvin, No. 24-cv-02257-JLB, 2024 U.S. Dist. LEXIS 222493, at *4 (S.D. Cal. Dec. 9, 1 2024) (denying IFP where monthly household income was $3,725 and monthly expresses 2 totaled $2,379 because Plaintiff could pay the filing fee and still afford the necessities of 3 || life.). 4 However, the IPF Application lacks sufficient information about whether Plaintiffs 5 || spouse’s income is in fact available to her and whether they share the spouse’s income and 6 || household expenses. Accordingly, the Court denies the IFP Application without prejudice. 7 ||Should Plaintiff elect to renew her IFP Application, additional information should be 8 || provided concerning these issues. CONCLUSION 10 Based on the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff's 11 || IFP Application. Doc. No. 3. On or before March 12, 2025, Plaintiff must either (1) file a 12 ||renewed application for leave to proceed in forma pauperis or (2) pay the requisite filing 13 || fee, otherwise her case may be dismissed. 14 IT IS SO ORDERED. 15 () sA— 16 Dated: February 12, 2025 17 Honorable Valerie E. Torres United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28