McClure v. Commissioner of Social Security

Filing 6

REPORT AND RECOMMENDATION recommending that plaintiff's 2 MOTION for Leave to Proceed in forma pauperis be granted. Signed by Magistrate Judge Ruben B. Brooks on 7/7/15.(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15cv1312 LAB RBB

Linda Marie McClure,
Plaintiff,

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REPORT AND
RECOMMENDATION GRANTING
PLAINTIFF'S MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF NO. 2]

v.
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Carolyn W. Colvin, Commissioner of
Social Security,
Defendant.

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On June 15, 2015, Plaintiff Linda Marie McClure (“Plaintiff”), commenced this

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action against Defendant Commissioner of Social Security for judicial review under 42

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U.S.C. § 405(g) of a final adverse decision for social security benefits. (Compl. 1, ECF

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No. 1.) On the same day, Plaintiff also filed a "Motion and Declaration Under Penalty of

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Perjury in Support of Motion to Proceed in Forma Pauperis” pursuant to 28 U.S.C.

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§ 1915(a) (the "Motion to Proceed in Forma Pauperis") [ECF No. 2]. On June 19, 2015,

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all matters arising out of this social security appeal, including the request to proceed in
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15cv1312 LAB RBB

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forma pauperis, were referred to the undersigned [ECF No. 4]. For the reasons explained

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below, the Motion to Proceed in Forma Pauperis should be GRANTED.

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

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.

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1999). All actions sought to be filed in forma pauperis pursuant to 28 U.S.C. § 1915

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must be accompanied by an affidavit signed by the applicant under penalty of perjury that

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includes a statement of all assets which shows inability to pay initial fees or give security.

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28 U.S.C. § 1915(a)(1); S.D. Civ. R. 3.2(a).

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Here, Plaintiff has submitted an affidavit stating that she is currently unemployed

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and has no bank account or savings. (Pl.’s Mot. Proceed in Forma Pauperis 2, ECF No.

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2.) She has no assets and has received no income or benefits from any source in the past

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twelve months. (Id. at 2-3.) Plaintiff does not own a car or any real property. (Id.) She

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lives with her adult son who provides for her daily expenses. (Id. at 3.) Based on the

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declaration regarding her current financial resources, Plaintiff has sufficiently shown that

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she cannot pay the filing fee because of her poverty. Adkins v. E.I. DuPont de Nemours

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& Co., 335 U.S. 331, 339-40 (1948). Because McClure has satisfied the requirements of

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15cv1312 LAB RBB

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28 U.S.C. § 1915(a), the Court recommends that her Motion to Proceed in Forma

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Pauperis be GRANTED.

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This matter is suitable for action by the District Judge in this case without the need

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for an objection period. See Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.

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1998) ("Consequently, we conclude that Minetti was not entitled to file written objections

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to the magistrate judge's recommendation that Minetti's application to proceed in forma

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pauperis be denied.").

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Dated: July 7, 2015

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RUBEN B. BROOKS
UNITED STATES MAGISTRATE JUDGE

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cc: Judge Burns
All Parties of Record

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15cv1312 LAB RBB