Armstrong v. Commissioner of Social Security

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 7/1/2014 ORDERING 4 Plainitff's Motion to Proceed informa pauperis is DENIED without prejudice; Within 28 days of this order, plaintiff shall either submit a third motion to proceed in for ma pauperis in compliance with this order, or pay the applicable filing fee. Alternatively, if plaintiff no longer wishes to pursue the action at this juncture, she may instead file a request for voluntary dismissal without prejudice pursuant to FRCP 41(a)(1)(A)(i). (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WENDY SUSAN ARMSTRONG,

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Plaintiff,

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No. 2:14-cv-1305-KJN

v.
COMMISSIONER OF SOCIAL
SECURITY,

ORDER

Defendant.

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Plaintiff Wendy Susan Armstrong, represented by counsel, commenced this social

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security action on May 28, 2014. (ECF No. 1.)1 On June 4, 2014, the court denied plaintiff’s

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motion to proceed in forma pauperis, because it was incomplete and/or unclear in several

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respects. (See ECF No. 3.) However, the court granted plaintiff leave to file an amended motion

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within 28 days. (Id.)
Thereafter, on June 28, 2014, plaintiff timely filed a second motion to proceed in forma

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pauperis. (ECF No. 4.) The affidavit in support of the motion, which has now been properly

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completed, states that plaintiff inherited $30,000.00 from her father in March 2014, of which she

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spent about half on paying bills. Thus, plaintiff presently has about $15,000.00 remaining in her

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savings account. She also owns a 2007 Honda Ridgeline valued at approximately $12,000.00;

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This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15).
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two non-operational vehicles; and her home, which is valued at approximately $110,000.00.

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Plaintiff has no dependents.

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Presently, a filing fee of $400 is required to commence a civil action in this court. The

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court may authorize the commencement of an action “without prepayment of fees or security

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therefor” by a person that is unable to pay such fees or provide security therefor. 28 U.S.C. §

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1915(a)(1). Here, the court cannot find that plaintiff is unable to pay, or provide security for, the

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court filing fee, particularly in light of her substantial cash assets. The court is sympathetic to the

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fact that the inheritance from plaintiff’s father was a one-time bequest and that plaintiff no doubt

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wishes to use the money for purposes other than court fees. Nevertheless, the court may not in

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fairness ignore the bequest’s impact on plaintiff’s ability to pay the filing fee, particularly when

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many other litigants with fewer available cash assets have been required to pay the filing fee.

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Indeed, numerous litigants in this court have significant monthly expenditures and sometimes

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face difficult choices as to which expenses to incur, which expenses to reduce or eliminate, and

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how to apportion their income between such expenses and litigating an action in federal court.

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Such difficulties in themselves do not amount to indigence.

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Therefore, the court denies the motion to proceed in forma pauperis. Nevertheless, the

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court also grants plaintiff leave to file a third and final motion to proceed in forma pauperis

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demonstrating that she qualifies as indigent for purposes of 28 U.S.C. § 1915, if, and only if, she

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believes in good faith that she can make such a showing in light of the requirements of the statute,

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plaintiff’s prior representations, and the court’s observations above.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to proceed in forma pauperis (ECF No. 4) is denied without
prejudice.

2. Within 28 days of this order, plaintiff shall either submit a third motion to proceed in

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forma pauperis in compliance with this order, or pay the applicable filing fee.

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Alternatively, if plaintiff no longer wishes to pursue the action at this juncture, she

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may instead file a request for voluntary dismissal without prejudice pursuant to

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Federal Rule of Civil Procedure 41(a)(1)(A)(i).
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IT IS SO ORDERED.
Dated: July 1, 2014

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