Riegel v. Colvin

Filing 5

ORDER Denying 2 Motion to Proceed in forma pauperis; and Dismissing Complaint Without Prejudice. Plaintiff is granted 30 days leave to pay the filing fee required or to submit additional documentation regarding her financial status. Signed by Judge Thomas J. Whelan on 8/4/15. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 DEBORAH LYNN RIEGEL, 13 CASE NO: 15-CV-1342 W (MDD) Plaintiff, ORDER: 14 15 (1) DENYING MOTION TO PROCEED IN FOR MA P AUP ER IS [DOC. 2]; AND v. 16 17 18 19 (2) DISMISSING COMPLAINT WITHOUT PREJUDICE CAROLYN W. COLVIN, Commissioner of the Social Security Administration 20 21 22 Defendant. On June 18, 2015, Plaintiff Deborah Lynn Riegel (“Plaintiff”) commenced this 23 action against Carolyn W. Colvin, Acting Commissioner of Social Security, for judicial 24 review of a final administrative decision denying disability benefits. (See Compl. [Doc. 1].) 25 Along with the Complaint, Plaintiff also filed a motion to proceed in forma pauperis 26 (“IFP”). (See IFP Mot. [Doc. 2].) For the reasons outlined below, the Court DENIES 27 Plaintiff’s IFP motion and DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE. 28 // -1- 15cv1342w 1 The determination of indigency falls within the district court’s discretion. Cal. 2 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 3 U.S. 194 (1993) (“[28 U.S.C. §] 1915 typically requires the reviewing court to exercise 4 its sound discretion in determining whether the affiant has satisfied the statute’s 5 requirement of indigency.”). It is well settled that a party need not be completely 6 destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 7 339–40 (1948); see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (“[T]he 8 filing fee, while discretionary, should not take the prisoner’s last dollar.”). Rather, to 9 satisfy the requirements of 28 U.S.C. § 1915(a), an affidavit need only state that one 10 cannot “because of his poverty pay or give security for the costs . . . and still be able to 11 provide himself and dependents with the necessities of life.” Adkins, 335 U.S. at 339 12 (internal quotation marks omitted). At the same time, however, the court must “assure 13 that federal funds are not squandered to underwrite, at public expense, . . . the 14 remonstrances of a suitor who is financially able, in whole or in material part, to pull his 15 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 16 District courts therefore tend to reject IFP applications where the applicant can 17 pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares, 59 F.3d 18 at 112 (district court did not abuse discretion in requiring partial fee payment from 19 prisoner who consistently spent $35 a month on “comforts” such as candy and name 20 brand toiletries from the prison commissary); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. 21 Pa. 1982) (IFP application denied because “plaintiff possessed savings of $450 and the 22 magistrate correctly determined that this amount was more than sufficient to allow the 23 plaintiff to pay the filing fee in this action”). Moreover, “in forma pauperis status may be 24 acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult Insts., 25 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citation omitted); see also Allen v. 26 Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who 27 was initially permitted to proceed in forma pauperis should be required to pay his $120 28 filing fee out of a $900 settlement). Furthermore, the facts as to the affiant’s poverty -2- 15cv1342w 1 must be stated “with some particularity, definiteness, and certainty.” United States v. 2 McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 3 Having read and considered Plaintiff’s application, the Court finds that Plaintiff 4 fails to meet the requirements set out in 28 U.S.C. § 1915 for IFP status. Plaintiff is 5 currently employed; her take-home wages amount to $575 each month. (IFP Mot. ¶ 2.) 6 She also lists her husband’s disability income, which amounts to $1,300 per month. (Id. 7 ¶ 3.) Plaintiff does not have a checking or savings account, nor does she own any real 8 estate, stocks, bonds, or securities. (Id. ¶¶ 4–5, 7.) Plaintiff and her husband do, 9 however, own two vehicles: a 2004 Toyota Matrix and a 2005 Ford Focus. (Id. ¶ 6.) The 10 current value of the vehicles is not stated in Plaintiff’s motion, but it appears that 11 Plaintiff and her husband own the vehicles outright. (See id.) Plaintiff does not list any 12 dependents. (Id. ¶ 6–8.) Furthermore, with regard to expenses, Plaintiff’s motion lists 13 monthly expenses totaling $1,705. Specifically, Plaintiff states that she allocates her 14 household income toward the following expenses and in the following amounts: $830 15 for rent; $180 for utilities; $70 for car insurance; $200 for car maintenance and fuel; 16 $400 for groceries; and $25 for laundry. 17 Based on the details given by Plaintiff, she has a net-positive monthly household 18 source of money of approximately $170. In addition, the details provided in Plaintiff’s 19 motion indicate that Plaintiff’s monthly household income places her above the 2015 1 20 poverty threshold. Therefore, as it stands, the Court cannot conclude that paying the 21 court filing fees would impair Plaintiff’s ability to obtain the necessities of life. See 22 Adkins, 335 U.S. at 339. Furthermore, Plaintiff and her husband also appear to own 23 two vehicles. In the absence of more detailed information regarding the value of the 24 25 1 According to the figures supplied by Plaintiff, her annual household income amounts 26 to $22,500. According to the poverty guidelines promulgated by the United States Department 27 of Health and Human Services, the poverty threshold for two-person households in the forty- eight contiguous states is $15,930. See United States Department of Health and Human 28 Services, 2015 Poverty Guidelines, http://aspe.hhs.gov/poverty/15poverty.cfm (last visited August 3, 2015). -3- 15cv1342w 1 vehicles, the Court cannot conclude that Plaintiff, because of her poverty, is unable to 2 give security for the cost of filing her Complaint and still be able to provide herself and 3 her husband with the necessities of life. See id.; see also Azzun v. Kan. Dep’t of Health 4 and Env’t, 2009 WL 5171778 (D. Kans. Dec. 22, 2009) (citing cases for the dual 5 propositions that “[a] court may consider [an] applicant’s assets, not merely his or her 6 income, in determining the applicant’s ability to pay the filing fee,” and that “[f]ederal 7 courts have historically looked to assets, such as equity in real estate, in determining 8 eligibility to proceed in forma pauperis”). 9 In light of the foregoing, the Court DENIES Plaintiff’s motion to proceed IFP 10 (Doc. 2), and DISMISSES the Complaint WITHOUT PREJUDICE . Pursuant to this 11 order, Plaintiff is granted 30 days’ leave to pay the filing fee required to maintain this 12 action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding 13 her financial status. IF PLAINTIFF CHOOSES TO FILE ADDITIONAL 14 INFORMATION REGARDING HER POVERTY, SHE MUST ATTACH A COPY 15 OF THIS ORDER. Additionally, Plaintiff is reminded that an IFP application is made 16 under penalty of perjury, and any false statements may result in dismissal of her claims, 17 imprisonment of not more than five years, or a fine. See 18 U.S.C. §§ 1621, 3571. 18 19 IT IS SO ORDERED. 20 21 DATED: August 4, 2015 22 23 24 Hon. Thomas J. Whelan United States District Judge 25 26 27 28 -4- 15cv1342w

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