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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
NAOMI RAMIREZ,
12
Plaintiff,
13
14
15
No. 2:17-cv-01561-KJM-CKD
v.
ORDER
METROPOLITAN LIFE INSURANCE
COMPANY and FARMERS AGENTS
GROUP BENEFITS,
16
Defendants.
17
18
Plaintiff Naomi Ramirez filed this civil lawsuit on July 27, 2017. ECF No. 1. She
19
20
now requests permission to proceed in forma pauperis (IFP). ECF No. 2.
21
I.
LEGAL STANDARD: IFP STATUS
With the exception of applications for writs of habeas corpus, a plaintiff filing a
22
23
civil lawsuit in a United States district court must generally pay a $400 filing fee. 28 U.S.C.
24
§ 1914. The “IFP statute,” however, waives the filing fee for a plaintiff1 that cannot afford the
25
payment, provided the suit is neither frivolous nor malicious. See 28 U.S.C. § 1915(a); Franklin
26
27
28
1
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).
1
1
v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The statute does not itself delineate when
2
someone is unable to pay the fee, but the Supreme Court has limited IFP status to those who file a
3
sworn affidavit showing “complete destitution”. Adkins v. E.I. DuPont de Nemours & Co., 335
4
U.S. 331, 339–40 (1948). Although the plaintiff seeking IFP status must allege poverty “with
5
some particularity, definiteness and certainty,” United States v. McQuade, 647 F.2d 938, 940 (9th
6
Cir. 1981) (internal quotation marks omitted), a sworn statement that the plaintiff cannot pay the
7
court costs while still affording the necessities of life is generally enough, Adkins, 335 U.S. at
8
339; Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). But “[i]f an applicant has the
9
wherewithal to pay court costs, or some part thereof, without depriving himself and his
10
dependents (if any there be) of the necessities of life, then he should be required . . . to put his
11
money where his mouth is.” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989) (citation and internal
12
quotation marks omitted).
13
II.
14
APPLICATION
Here, plaintiff is entitled to IFP status. Under penalty of perjury, she declares she
15
has only $100 in savings, no job, and limited property of value. IFP Application, ECF No. 2.
16
She apparently has a home, for which she has a $933 monthly mortgage payment, and she owns
17
an $8,000 car. Id. Plaintiff’s only income source is a $1,182 monthly social security disability
18
payment. Her reported monthly expenses include her mortgage, $95 for car insurance, and $110
19
for utilities. Id. In sum, her basic monthly expenses total $1,138, just $44 shy of her monthly
20
income, without accounting for other basic expenses such as food. Plaintiff has sufficiently
21
shown destitution.
22
That she is represented by counsel does not change this result. See generally
23
28 U.S.C. § 1915(a) (nowhere limiting IFP status to pro se plaintiffs); Kwan v. Schlein, 246
24
F.R.D. 447, 453 (S.D.N.Y. 2007) (“[A]uthorization to commence litigation without the
25
prepayment of fees is based on the resources of the litigant and not on whether she has obtained
26
counsel.”); see also Cottingham for Washington v. Bd. of Educ. of Emery Unified Sch. Dist.,
27
C-93-0824-DLJ, 1993 WL 79698, at *1 (N.D. Cal. Mar. 15, 1993) (considering plaintiffs’
28
request, although represented by counsel, to proceed IFP). Without any evidence showing
2
1
plaintiff has paid her attorney, the court accepts her declaration of destitution as true. See Kwan,
2
246 F.R.D. at 453 (“[Unless] payments []to her attorney demonstrate [Kwan] is no longer
3
indigent, there is no basis for reconsidering her in forma pauperis status.”). The court GRANTS
4
plaintiff’s motion to proceed in forma pauperis.
5
IT IS SO ORDERED.
6
This resolves ECF No. 2.
7
DATED: August 10, 2017.
8
9
10
UNITED STATES DISTRICT JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?