Lay et al v. Astrue

Filing 3

ORDER denying without prejudice 2 Plaintiffs' Motion to Proceed in forma pauperis. To proceed with this action, Plaintiffs must either pay the $350 filing fee, or submit a renewed motion to proceed IFP along with affidavits from both plaintiffs, on or before June 9, 2011. Signed by Judge Michael M. Anello on 5/26/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RIN LAY and HUONG NGUYEN,

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CASE NO. 11-CV-1127 MMA (MDD)
Plaintiffs,

ORDER DENYING PLAINTIFFS’
MOTION TO PROCEED IN
FORMA PAUPERIS

vs.
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MICHAEL S. ASTRUE, Commissioner of
Social Security,

[Doc. No. 2]

Defendant.

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On April 21, 2011, Plaintiffs Rin Lay and Huong Nguyen filed a Complaint against

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Defendant Michael S. Astrue, Commissioner of Social Security. [Doc. No. 1.] Plaintiff Rin Lay

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has submitted a Motion for Leave to Proceed in forma pauperis (“IFP”). [Doc. No. 2.]

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only

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if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.

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Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

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

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116 (9th Cir. 1965). Although only one filing fee is required per case, where there are multiple

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plaintiffs and only one plaintiff seeks to proceed IFP, a court may consider the availability of

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funds from the other plaintiffs in determining whether to grant IFP status. See Nur v. Blake
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11-CV-1127 MMA (MDD)

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Development Corp., 664 F. Supp. 430, 431 (N.D. Ind. 1987).
Plaintiff Lay attests he receives income from social security benefits, has a checking

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account with a present balance of sixty dollars, and owns no other property. However, named

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Plaintiff Nguyen has not submitted an affidavit of assets. The Court does not have sufficient

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information to determine whether Plaintiff Nguyen has the available funds to pay the filing fee in

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this action. Although parties need not be completely destitute to proceed IFP, a court must employ

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“the same even-handed care . . . to assure that federal funds are not squandered to underwrite, at

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public expense . . . the remonstrances of a suitor who is financially able, in whole or in material

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part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I.1984).

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Therefore, the Court DENIES without prejudice Plaintiffs’ motion to proceed IFP. To

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proceed with this action, Plaintiffs must either pay the $350 filing fee, or submit a renewed motion

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to proceed IFP along with affidavits from both plaintiffs, on or before June 9, 2011.

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IT IS SO ORDERED.

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DATED: May 26, 2011
Hon. Michael M. Anello
United States District Judge

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11-CV-1127 MMA (MDD)