Pendergast v. Commissioner of Social Security

Filing 4

ORDER to PLAINTIFF to SHOW CAUSE Why His Motion to Proceed In Forma Pauperis Should Not Be Denied, signed by Magistrate Judge Jennifer L. Thurston on 4/21/2016. Show Cause Response due within 21 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRYAN RUSSELL PENDERGAST,

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Plaintiff,

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v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No.: 1:16-cv-00552 - JLT
ORDER TO PLAINTIFF TO SHOW CAUSE
WHY HIS MOTION TO PROCEED IN FORMA
PAUPERIS SHOULD NOT BE DENIED

The Court may authorize the commencement of an action without prepayment of fees “by a

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person who submits an affidavit that includes a statement of all assets such person . . . possesses [and]

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that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). Thus, an

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action may proceed despite a failure to prepay the filing fee only if leave to proceed in forma pauperis

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is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1176, 1177, 1178 (9th Cir. 1999).

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The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of

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privilege and not a right; denial of an in forma pauperis status does not violate the applicant’s right to

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due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314

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F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to

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proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In

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making a determination, the Court “must be careful to avoid construing the statute so narrowly that a
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litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or

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foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

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Plaintiff attests that he is not employed and has not been employed for the past twelve months.

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(Doc. 1 at 1) However, Plaintiff reports that his wife is employed and “earns $3500 a month.” (Id.)

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He reports their monthly expenses include rent, transportation, utiltiies, student loans, medication, and

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groceries. (Id.) The income reported exceeds the expenses by more than $500 per month, and

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Plaintiff has $1,200 in a checking account. (Id. at 1-2)

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ORDER

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As noted above, Plaintiff has not demonstrated an inability to provide himself with life’s

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necessities while still paying court costs. Thus, the Court ORDERS: Within 21 days, Plaintiff

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SHALL show cause in writing why his motion to proceed in forma pauperis should not be denied.

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Plaintiff is advised that her failure to respond timely to this order will result in a
recommendation that his motion to proceed in forma pauperis be denied.

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IT IS SO ORDERED.
Dated:

April 21, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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