Ramirez v. Metropolitan Life Insurance Company, et al,.

Filing 3

ORDER signed by District Judge Kimberly J. Mueller on 8/10/17 ORDERING the plaintiff's 2 motion to proceed in forma pauperis is GRANTED.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NAOMI RAMIREZ,

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Plaintiff,

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No. 2:17-cv-01561-KJM-CKD

v.

ORDER

METROPOLITAN LIFE INSURANCE
COMPANY and FARMERS AGENTS
GROUP BENEFITS,

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Defendants.

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Plaintiff Naomi Ramirez filed this civil lawsuit on July 27, 2017. ECF No. 1. She

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now requests permission to proceed in forma pauperis (IFP). ECF No. 2.

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I.

LEGAL STANDARD: IFP STATUS
With the exception of applications for writs of habeas corpus, a plaintiff filing a

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civil lawsuit in a United States district court must generally pay a $400 filing fee. 28 U.S.C.

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§ 1914. The “IFP statute,” however, waives the filing fee for a plaintiff1 that cannot afford the

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payment, provided the suit is neither frivolous nor malicious. See 28 U.S.C. § 1915(a); Franklin

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All persons, not just prisoners, may seek IFP status. Andrews v. Cervantes, 493 F.3d
1047, 1051 n.1 (9th Cir. 2007) (citing Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th
Cir. 2005) (finding statute applies to all persons despite its “prisoner possesses” language, and
collecting cases so holding).
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v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The statute does not itself delineate when

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someone is unable to pay the fee, but the Supreme Court has limited IFP status to those who file a

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sworn affidavit showing “complete destitution”. Adkins v. E.I. DuPont de Nemours & Co., 335

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U.S. 331, 339–40 (1948). Although the plaintiff seeking IFP status must allege poverty “with

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some particularity, definiteness and certainty,” United States v. McQuade, 647 F.2d 938, 940 (9th

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Cir. 1981) (internal quotation marks omitted), a sworn statement that the plaintiff cannot pay the

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court costs while still affording the necessities of life is generally enough, Adkins, 335 U.S. at

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339; Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). But “[i]f an applicant has the

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wherewithal to pay court costs, or some part thereof, without depriving himself and his

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dependents (if any there be) of the necessities of life, then he should be required . . . to put his

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money where his mouth is.” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989) (citation and internal

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quotation marks omitted).

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II.

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APPLICATION
Here, plaintiff is entitled to IFP status. Under penalty of perjury, she declares she

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has only $100 in savings, no job, and limited property of value. IFP Application, ECF No. 2.

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She apparently has a home, for which she has a $933 monthly mortgage payment, and she owns

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an $8,000 car. Id. Plaintiff’s only income source is a $1,182 monthly social security disability

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payment. Her reported monthly expenses include her mortgage, $95 for car insurance, and $110

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for utilities. Id. In sum, her basic monthly expenses total $1,138, just $44 shy of her monthly

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income, without accounting for other basic expenses such as food. Plaintiff has sufficiently

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shown destitution.

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That she is represented by counsel does not change this result. See generally

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28 U.S.C. § 1915(a) (nowhere limiting IFP status to pro se plaintiffs); Kwan v. Schlein, 246

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F.R.D. 447, 453 (S.D.N.Y. 2007) (“[A]uthorization to commence litigation without the

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prepayment of fees is based on the resources of the litigant and not on whether she has obtained

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counsel.”); see also Cottingham for Washington v. Bd. of Educ. of Emery Unified Sch. Dist.,

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C-93-0824-DLJ, 1993 WL 79698, at *1 (N.D. Cal. Mar. 15, 1993) (considering plaintiffs’

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request, although represented by counsel, to proceed IFP). Without any evidence showing
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plaintiff has paid her attorney, the court accepts her declaration of destitution as true. See Kwan,

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246 F.R.D. at 453 (“[Unless] payments []to her attorney demonstrate [Kwan] is no longer

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indigent, there is no basis for reconsidering her in forma pauperis status.”). The court GRANTS

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plaintiff’s motion to proceed in forma pauperis.

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IT IS SO ORDERED.

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This resolves ECF No. 2.

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DATED: August 10, 2017.

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UNITED STATES DISTRICT JUDGE

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