Truong v. O' Malley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DORIS T.,1 Case No.: 24-cv-1022-MMP

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN 14 MARTIN O’MALLEY, FORMA PAUPERIS 15 Defendant. [ECF No. 2] 16 17 18 On June 11, 2024, Doris T. (“Plaintiff”) filed this Social Security appeal pursuant to 19 42 U.S.C. § 405(g) of the Social Security Act, seeking judicial review of the decision of 20 the Commissioner of the Social Security Administration (“Defendant”) denying Plaintiff’s 21 application for supplemental security income benefits. [ECF No. 1.] Plaintiff also filed a 22 Motion for Leave to Proceed In Forma Pauperis (“IFP”). [ECF No. 2.] 23 All parties instituting any civil action, suit, or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 26 27 1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government 28 1 $405. See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to 2 prepay the filing fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 3 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 4 The determination of indigency falls within the district court’s discretion. California 5 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds 6 by, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise 7 its sound discretion in determining whether the affiant has satisfied the statute’s 8 requirement of indigency.”). A party need not be completely destitute to proceed IFP. 9 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the 10 requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states 11 that one cannot because of his poverty pay or give security for costs . . . and still be able to 12 provide for himself and dependents with the necessities of life.” Id. at 339 (internal 13 quotation marks omitted). At the same time, “the same even-handed care must be employed 14 to assure that federal funds are not squandered to underwrite, at public expense, either 15 frivolous claims or the remonstrances of a suitor who is financially able, in whole or in 16 material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 17 1984). The facts as to the affiant’s poverty must be stated “with some particularity, 18 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 19 Plaintiff has not satisfied her burden of demonstrating she is entitled to IFP status. 20 According to her sworn statement, Plaintiff’s monthly income is $900 from part-time 21 employment, and she presently has $100 in her checking account. [ECF No. 2 ¶¶ 2(a), 3, 22 4(b).] Plaintiff also owns a 2011 Ford Fiesta; she does not identify the value of the vehicle 23 but indicates she owes $7,000. [Id. ¶ 6(c).] Plaintiff does not own any other property and 24 25 26 2 In addition to the $350.00 statutory fee, civil litigants must pay an additional 27 administrative fee of $55.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55.00 28 1 || has no dependents. [/d. 4]§] 7—8.] However, Plaintiff does not identify any monthly expenses. 2 || While Plaintiff attests she has been borrowing money from her mother to pay for room and 3 ||board since 2017 and currently owes $32,000, she does not indicate if she is currently 4 || repaying that obligation and, if so, the amount per month. [/d. 9, 12.] Plaintiff also does 5 indicate how much her monthly car payment is, or if she pays it herself. [/d.] Plaintiff's 6 || application does not sufficiently demonstrate that paying the $405 filing fee, or a portion 7 || of it, would impair her ability to provide for her necessities. 8 The Court finds Plaintiff has not met her burden of demonstrating she is entitled to 9 ||IFP status due to an inability to pay the filing fees. Thus, the Court DENIES Plaintiff's 10 motion without prejudice. Plaintiff must pay the filing fee or file a renewed motion? for 11 || IFP no later than July 16, 2024. 12 IT IS SO ORDERED. 13 ||Dated: July 2, 2024 Whi j, alo. I. sete 14 HON. MICHELLE M. PETTIT 15 United States Magistrate Judge

16 17 18 19 20 21 22 23

25 3 Tn the event Plaintiff files a renewed motion for leave to proceed IFP, she should complete the “Application to Proceed in District Court Without Prepaying Fees or Costs 27 (Long Form)” found at, 58 https.//www.casd.uscourts. gov/_assets/pdf/forms/AO239_Application%20to%20Proceed %20W ithout%20Prepayment.pdf.