(SS) Garcia v. Commissioner of Social Security

E.D. California

(SS) Garcia v. Commissioner of Social Security

DecidedFebruary 9, 2022

Docket1:21-cv-01799

StatusUnknown

This text of (SS) Garcia v. Commissioner of Social Security ((SS) Garcia v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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(SS) Garcia v. Commissioner of Social Security, (E.D. Cal. 2022).

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JESSIE GARCIA, Case No. 1:21-cv-01799-SAB

12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 13 v. JUDGE TO THIS ACTION

14 COMMISSIONER OF SOCIAL SECURITY, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL 15 Defendant. (ECF Nos. 2, 3) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS

18 19 Plaintiff Jessie Garcia filed a complaint on December 21, 2021, challenging a final 20 decision of the Commissioner of Social Security denying their application for disability benefits. 21 Plaintiff did not pay the filing fee in this action and instead filed an application to proceed in 22 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) On December 28, 2021, an order 23 issued finding that Plaintiff’s application to proceed in forma pauperis did not demonstrate 24 entitlement to proceed in this action without prepayment of fees. (ECF No. 3.) Plaintiff was 25 ordered to either file a long form application to proceed without prepayment of fees or pay the 26 filing fee. (Id.) The deadline to either submit a long form application or pay the filing fee was 27 January 18, 2022. (See id.) The deadline to submit a long form application has expired and Plaintiff has not filed an application. 1 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit 2 an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 3 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a 4 privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 5 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 6 (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of 7 in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need 8 not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it 9 states that due to his poverty he is unable to pay the costs and still be able to provide himself and 10 his dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 11 331, 339 (1948). Whether to grant or deny an application to proceed without prepayment of fees 12 is an exercise of the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th 13 Cir. 2015). 14 Plaintiff was provided twenty-one days to either file a long form application to proceed 15 without prepayment of fees or pay the filing fee. (ECF No. 3 at 2.) Plaintiff was further advised 16 that failure to either pay the $402.00 filing fee or file a long form application to proceed in forma 17 pauperis would result in dismissal of this action. Plaintiff’s failure to comply with the Court’s 18 order by either submitting an application to proceed in forma pauperis or paying the filing fee 19 warrants dismissal. 20 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 21 District Judge to this action. 22 Further, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to 23 prosecute and failure pay the filing fee. 24 This findings and recommendations is submitted to the district judge assigned to this 25 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 26 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 27 and recommendations with the court. Such a document should be captioned “Objections to 1 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 2 | parties are advised that failure to file objections within the specified time may result in the 3 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 4 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. DAM Le 7 | Dated: _February 8, 2022 _ UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JESSIE GARCIA, Case No. 1:21-cv-01799-SAB

12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 13 v. JUDGE TO THIS ACTION

14 COMMISSIONER OF SOCIAL SECURITY, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL 15 Defendant. (ECF Nos. 2, 3) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS

18 19 Plaintiff Jessie Garcia filed a complaint on December 21, 2021, challenging a final 20 decision of the Commissioner of Social Security denying their application for disability benefits. 21 Plaintiff did not pay the filing fee in this action and instead filed an application to proceed in 22 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) On December 28, 2021, an order 23 issued finding that Plaintiff’s application to proceed in forma pauperis did not demonstrate 24 entitlement to proceed in this action without prepayment of fees. (ECF No. 3.) Plaintiff was 25 ordered to either file a long form application to proceed without prepayment of fees or pay the 26 filing fee. (Id.) The deadline to either submit a long form application or pay the filing fee was 27 January 18, 2022. (See id.) The deadline to submit a long form application has expired and Plaintiff has not filed an application. 1 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit 2 an affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 3 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a 4 privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 5 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 6 (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of 7 in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need 8 not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it 9 states that due to his poverty he is unable to pay the costs and still be able to provide himself and 10 his dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 11 331, 339 (1948). Whether to grant or deny an application to proceed without prepayment of fees 12 is an exercise of the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th 13 Cir. 2015). 14 Plaintiff was provided twenty-one days to either file a long form application to proceed 15 without prepayment of fees or pay the filing fee. (ECF No. 3 at 2.) Plaintiff was further advised 16 that failure to either pay the $402.00 filing fee or file a long form application to proceed in forma 17 pauperis would result in dismissal of this action. Plaintiff’s failure to comply with the Court’s 18 order by either submitting an application to proceed in forma pauperis or paying the filing fee 19 warrants dismissal. 20 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 21 District Judge to this action. 22 Further, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to 23 prosecute and failure pay the filing fee. 24 This findings and recommendations is submitted to the district judge assigned to this 25 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 26 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 27 and recommendations with the court. Such a document should be captioned “Objections to 1 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 2 | parties are advised that failure to file objections within the specified time may result in the 3 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 4 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. DAM Le 7 | Dated: _February 8, 2022 _ UNITED STATES MAGISTRATE JUDGE

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