(SS) Gutierrez v. Commissioner of Social Security

Filing 4

FINDINGS and RECOMMENDATIONS to Deny #2 Application to Proceed In Forma Pauperis and to Require Filing Fee Payment, and Directing Clerk of Court to Randomly Assign a United States District Judge, signed by Magistrate Judge Gary S. Austin on 2/17/2021. Objections to F&R due within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CASE NUMBER: 1:21-cv-00181-GSA

Patricia Gutierrez

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Plaintiff,
v.
ANDREW SAUL, Commissioner of Social
Security,

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Defendant.

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FINDINGS AND
RECOMMENDATIONS TO DENY
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND TO
REQUIRE FILING FEE PAYMENT,
AND DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN A UNITED
STATES DISTRICT JUDGE
(Doc. 2)

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On February 12, 2021 Plaintiff filed a complaint in this Court and applied to proceed
without prepayment of fees (in forma pauperis) pursuant to 28 U.S.C. § 1915. Docs. 1–2.

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I.

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In order to proceed without prepayment of the filing fee, Plaintiff must submit an affidavit

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demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1).

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“To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th

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Cir. 1965).

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citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or

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criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to

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pay or secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal

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quotations and citations omitted).

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Legal Standard

In enacting the in forma pauperis statute, “Congress intended to guarantee that no

The determination whether a party may proceed in forma pauperis is a “matter within the
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discretion of the trial court . . .” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). To proceed

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in forma pauperis, a plaintiff need not demonstrate that he is completely destitute, but his poverty

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must prevent him from paying the filing fee and providing himself and his dependents (if any) with

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the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948).

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Although there is no bright line rule, courts look to the federal poverty guidelines developed each

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year by the Department of Health and Human Services. See, e.g., Lint v. City of Boise, No. CV09-

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72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein).

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II.

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Plaintiff’s application reflects no employment, minimal cash on hand and no other liquid

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assets. However, Plaintiff’s application also reflects that she has no dependents and that her spouse

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receives income of $3,415 per month ($40,980) per year, which is substantially more than the 2021

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federal poverty guideline for a household of two ($17,420 per year). See 2021 Poverty Guidelines,

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https://aspe.hhs.gov/poverty-guidelines (last visited February 17, 2021). This suggests an ability

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to pay the $402 filing fee without sacrificing the necessities of daily life.

Findings

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III.

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Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma

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Recommendation

pauperis be denied (Doc. 2).

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The Clerk of Court is DIRECTED to randomly assign this case to a United States District

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Judge for resolution of these findings and recommendations pursuant to the provisions of Title 28

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U.S.C. § 636(b)(l).

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recommendations, Plaintiff may file written objections with the court. L.R. 304(b). Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the waiver

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of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

Within fourteen (14) days from the filing of these findings and

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IT IS SO ORDERED.
Dated:

February 17, 2021

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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