Wilson v. Commissioner of Social Security

Filing 5

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 7/16/2016. 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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DWAYNE WILSON,
Plaintiff,

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

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Defendant.
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Case No.: 1:16-cv-01012 - JLT
ORDER TO PLAINTIFF TO SHOW CAUSE WHY
HIS MOTION TO PROCEED IN FORMA
PAUPERIS SHOULD NOT BE DENIED

Plaintiff seeks to proceed in forma pauperis with this action for judicial review of the decision
to deny his application for Social Security benefits. (Docs. 1, 2)
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 determined that “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 asserts he is currently employed and has a monthly income of $3,807.86. (Doc. 2 at

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2) Plaintiff reports montly expenses of $3,664.00. (Id. at 5) Notably, however, this total includes

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$1,100 per month for recreation, entertainment, clothing, and laundry. (See id. at 4) Given the

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information provided regarding Plaintiff’s income and expenses —particularly the amounts identified

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for “[r]ecreation, entertainment, newspapers, magazines,” and the purchase of new clothing each

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month—it is not clear that Plaintiff is unable to provide himself with life’s necessisities while still

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paying the Court costs.
ORDER

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As noted above, Plaintiff has not demonstrated an inability to pay the Court fees as required by
28 U.S.C. § 1915(a). Thus, the Court ORDERS:
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Within 21 days, Plaintiff SHALL show cause in writing why his motion to proceed in

forma pauperis should not be denied; and
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Plaintiff is advised that his failure to respond timely to this order will result in a

recommendation that the motion to proceed in forma pauperis be denied.

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IT IS SO ORDERED.
Dated:

July 16, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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