Noland v. Astrue

Filing 3

ORDER (1) denying 2 Motion for Leave to Proceed in forma pauperis; (2) dismissing complaint: Plaintiff is granted 60 days from the date this Order is electronically docketed to pay the $350 filing fee required to maintain this action pursuant to 28 U.S.C. § 1914, or to submit an amended IFP application. Signed by Judge Janis L. Sammartino on 4/2/12. (lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REINE ANTHONY NOLAND,

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CASE NO. 12CV753 JLS (JMA)
Plaintiff,

ORDER (1) DENYING
PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS; (2) DISMISSING
COMPLAINT

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

(ECF No. 2)

Defendant.

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Presently before the Court is Plaintiff Reine Anthony Noland’s (“Plaintiff”) motion for
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leave to proceed in forma pauperis (“IFP”). (IFP Mot., ECF No. 2) Plaintiff has submitted a civil
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action seeking judicial review of the Commissioner’s decision denying Plaintiff’s claim for
disability insurance benefits. (Compl., ECF No. 1)
MOTION TO PROCEED IFP
All parties instituting any civil action, suit, or proceeding in a district court of the United
States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only
if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize the commencement of
an action without the prepayment of fees if the party submits an affidavit, including a statement of
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assets, showing that plaintiff is unable to pay the required filing fee. 28 U.S.C. § 1915(a). The

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Court has broad discretion to deny a motion to proceed IFP in a civil action, however. O’Loughlin

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v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

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Here, Plaintiff does not indicate whether or where he is employed, but notes that his take-

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home pay is $1142.41. (IFP Mot. 1, ECF No. 2) He further indicates that he receives “pension of

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$642 and a settlement of $500 a month.” (Id.) The Court notes that together the pension and

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settlement funds amount to $1142, approximately the same amount Plaintiff lists as his take-home

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pay. As such, because Plaintiff has left question 2 regarding his employment blank, it is unclear

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whether these funds—listed under “Other Income”—are in addition to the take-home pay listed, or

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are the sources of the take-home pay.

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Plaintiff also has $600 in his bank account, and owns a five-year-old truck worth

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approximately $8000. (Id. at 2) He indicates, however, that he pays $725.05 per month in truck

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payments, and that the truck “will soon be in [his] bankruptcy case.” (Id.) He lists no other

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dependants, debts, or financial obligations. (See id.)

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Based on the information provided, the Court is unable to determine whether leave to

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proceed IFP should be granted. A plaintiff wishing to proceed IFP must demonstrate his poverty

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with “some particularity, definiteness, and certainty,” which Plaintiff has not done here. United

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States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam) (internal quotation marks

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omitted). Plaintiff should have provided an accurate and detailed response to question 2 in the IFP

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application, indicating when, whether, and where he is employed, and whether the take-home pay

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listed is in addition to the pension and settlement funds, or is the total of those funds. The scant

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information given in Plaintiff’s IFP application provides the Court with no reliable understanding

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of Plaintiff’s financial position. Thus, the Court finds that Plaintiff’s declaration of inability to pay

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costs or give security is insufficient to permit him to proceed IFP.

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For these reasons, Plaintiff’s motion to proceed IFP is DENIED and the complaint is

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DISMISSED WITHOUT PREJUDICE. Pursuant to this Order, however, Plaintiff is granted

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sixty days from the date this Order is electronically docketed to pay the $350 filing fee required to

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maintain this action pursuant to 28 U.S.C. § 1914, or to submit an amended IFP application with
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additional documentation regarding his economic status. If Plaintiff chooses to file additional

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information regarding his poverty he SHALL ATTACH a copy of this Order to his amended IFP

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application.

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IT IS SO ORDERED.

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DATED: April 2, 2012
Honorable Janis L. Sammartino
United States District Judge

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