Hadi v. Colvin

Filing 3

ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis; and Referring to Magistrate Judge for Report and Recommendation: The Court refers all matters arising in this case to United States Magistrate Judge Peter C. Lewis for a Report & Recommendation. If the parties choose to file motions in this case, they shall contact Judge Lewis chambers to secure scheduling, filing, and hearing dates. Signed by Judge Cynthia Bashant on 7/10/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN HADI,
Plaintiff,

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Case No. 15-cv-01421-BAS(PCL)
ORDER:
(1) GRANTING MOTION FOR
LEAVE TO PROCEED IN
FORMA PAUPERIS (ECF NO.
2); AND

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

(2) REFERRING TO
MAGISTRATE JUDGE FOR
REPORT AND
RECOMMENDATION

Defendant.

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On June 29, 2015, plaintiff John Hadi (“Plaintiff”) commenced this action

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against defendant Carolyn W. Colvin, Acting Commissioner of the Social Security

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Administration, seeking judicial review of the Commissioner’s final administrative

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decision denying Plaintiff’s application for Supplemental Security Income benefits

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under the Social Security Act. On the same day, Plaintiff also filed a motion seeking

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leave to proceed in forma pauperis (“IFP”). (ECF No. 2 (“IFP Mot.”.) For the

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reasons outlined below, the Court GRANTS Plaintiff’s IFP motion.

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The determination of indigency falls within the district court’s discretion. Cal.

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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds,

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506 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing

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court to exercise its sound discretion in determining whether the affiant has satisfied
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the statute’s requirement of indigency.”). It is well-settled that a party need not be

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completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours

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& Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. §

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1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because

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of his poverty pay or give security for costs…and still be able to provide himself and

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dependents with the necessities of life.” Id. at 339 (internal quotations omitted). At

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the same time, however, “the same even-handed care must be employed to assure

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that federal funds are not squandered to underwrite, at public expense,…the

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remonstrances of a suitor who is financially able, in whole or in material part, to pull

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

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District courts, therefore, tend to reject IFP applications where the applicant

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can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer

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v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other

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grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district

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court did not abuse its discretion in requiring a partial fee payment from a prisoner

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who had a $14.61 monthly salary and who received $110 per month from family).

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Moreover, “[i]n forma pauperis status may be acquired and lost during the course of

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litigation.” Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at *2 (E.D. Cal.

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Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995

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WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially

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permitted to proceed in forma pauperis should be required to pay his $120 filing fee

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out of a $900 settlement). In addition, the facts as to the affiant’s poverty must be

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stated “with some particularity, definiteness, and certainty.”

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McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277

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F.2d 723, 725 (9th Cir. 1960)).

United States v.

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Having read and considered Plaintiff’s motion, the Court finds that Plaintiff

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meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is unemployed

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and was last employed in December 2013. (IFP Mot. at p. 2.) He has $300 in his
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checking account, and does not own any real estate, valuable personal property, or

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other investments. (Id.) He owns a 1996 Ford Aerostar van, which was donated to

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him, and is worth $0. (Id.) He sleeps in his van. (Id.) Plaintiff receives $194 per

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month in food stamps and $330 per month in General Relief. (Id.) He has received

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no other income or assistance during the past twelve months. (Id.) His expenses

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include food, gas of $100 per month, and laundry of $5 every three weeks. (Id.)

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Consequently, the Court finds that requiring Plaintiff to pay the court filing fees

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would impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339.

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In light of the foregoing, the Court GRANTS Plaintiff’s application to proceed

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IFP (ECF No. 2). However, if it appears at any time in the future that Plaintiff’s

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financial picture has improved for any reason, the Court will direct Plaintiff to pay

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the filing fee to the Clerk of the Court. This includes any recovery Plaintiff may

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realize from this suit or others, and any assistance Plaintiff may receive from

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family or the government.

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Additionally, the Court REFERS all matters arising in this case to United

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States Magistrate Judge Peter C. Lewis for a Report & Recommendation in

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accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1). If the parties

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choose to file motions in this case, they shall contact Judge Lewis’ chambers to

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secure scheduling, filing, and hearing dates.

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IT IS SO ORDERED.

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DATED: July 10, 2015

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