(SS) Ramirez v. Commissioner of Social Security

Filing 4

ORDER Directing Clerk of the Court to Randomly Assign Matter to District Judge; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Application to Proceed In Forma Pauperis be DENIED re 1 Social Security Complaint signed by Magistrate Judge Stanley A. Boone on 9/9/2020. Referred to Unassigned DJ. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TINA RAMIREZ, Plaintiff, 12 13 14 15 Case No. 1:20-cv-01276-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING CLERK OF THE COURT TO RANDOMLY ASSIGN MATTER TO DISTRICT JUDGE v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 (ECF Nos. 2) 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 On September 9, 2020, Tina Ramirez (“Plaintiff”) filed the complaint in this action 20 seeking judicial review of the final decision of Defendant Commissioner of Social Security 21 (“Defendant”) denying her application for benefits under the Social Security Act. (ECF No. 1.) 22 Plaintiff also filed an application to proceed in forma pauperis without prepayment of the filing 23 fee on the same day. (ECF No. 2.) The Court has reviewed Plaintiff’s application to proceed in 24 forma pauperis and finds that Plaintiff is not entitled to proceed without prepayment of fees in 25 this action. (ECF No. 3.) 26 In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an 27 affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 28 § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and 1 1 not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 2 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to 3 proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis 4 status does not violate the applicant’s right to due process”). A plaintiff need not be absolutely 5 destitute to proceed in forma pauperis and the application is sufficient if it states that due to her 6 poverty she is unable to pay the costs and still be able to provide himself and his dependents with 7 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 8 Whether to grant or deny an application to proceed without prepayment of fees is an exercise of 9 the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 10 In assessing whether a certain income level meets the poverty threshold under Section 11 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department 12 of Health and Human Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 13 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 14 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 15 Plaintiff’s application states that she receives $181.00 per month in food stamps, 16 $1,200.00 per month in worker’s compensation benefits, and $724.00 per month ($181 per week) 17 in child support for a monthly income of $2,105.00. Plaintiff’s yearly income is therefore 18 roughly $25,260.00. Plaintiff states that she has two children who are dependent on her for 19 support. The 2020 Poverty Guidelines for the 48 contiguous states for a household of three is 20 $21,720.00. 2020 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited 21 September 9, 2020). Plaintiff’s income is well above the poverty level for a family of three. 22 Further, Plaintiff has $1,250.00 in savings demonstrating that she has the ability to pay the filing 23 fee without depriving her family of the necessities of life. Based on the information provided, 24 the Court finds that Plaintiff has the ability to pay the filing fee and is not entitled to proceed 25 without prepayment of fees in this action. 26 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s application to 27 proceed without prepayment of fees be denied and Plaintiff be ordered to pay the $400.00 filing 28 fee in this action. 2 The Clerk of the Court is HEREBY DIRECTED to randomly assign this action to a 1 2 district judge. This findings and recommendations is submitted to the district judge assigned to this 3 4 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 5 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 6 and recommendations with the court. Such a document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 8 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 9 Plaintiff is advised that failure to file objections within the specified time may result in the 10 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 IT IS SO ORDERED. 14 Dated: September 9, 2020 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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