Cass v. Berryhill

Filing 4

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Thomas J. Whelan on 7/12/2017. (jao)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY LEE CASS, Case No.: 17-CV-1364 W (NLS) Plaintiff, 12 13 14 ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS [DOC. 2] v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, 15 16 Defendant. 17 18 19 Plaintiff Timothy Lee Cass filed this action on July 5, 2017, seeking review of the 20 denial of his application for disability insurance benefits under the Social Security Act. 21 (Compl. [Doc. 1].) He thereafter filed the pending motion to proceed in forma pauperis 22 (“IFP”) under 28 U.S.C. § 1915. (Pl.’s Mot. [Doc. 2].) The Court decides the matter on 23 the papers submitted pursuant to Civ. L.R. 7.1(d)(1). For the reasons outlined below, the 24 Court DENIES the IFP motion. [Doc. 2.] 25 // 26 // 27 28 1 17-CV-1364 W (NLS) 1 I. LEGAL STANDARD 2 The determination of indigency falls within the district court’s discretion. 3 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on 4 other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court 5 to exercise its sound discretion in determining whether the affiant has satisfied the 6 statute’s requirement of indigency.”). 7 It is well-settled that a party need not be completely destitute to proceed in forma 8 pauperis. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 9 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 10 which states that one cannot because of his poverty pay or give security for costs . . . and 11 still be able to provide himself and dependents with the necessities of life.” Id. at 339 12 (internal quotations omitted). At the same time, however, “the same even-handed care 13 must be employed to assure that federal funds are not squandered to underwrite, at public 14 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 15 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 16 “[T]he greater power to waive all fees includes the lesser power to set partial fees.” 17 Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995). 18 The facts as to the affiant’s poverty must be stated “with some particularity, 19 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 20 1981) (internal quotation omitted). District courts tend to reject IFP applications where 21 the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., 22 Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (initially permitting Plaintiff to 23 proceed in forma pauperis but later requiring him to pay $120 filing fee out of $900 24 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (“[P]laintiff 25 possessed savings of $450 and the magistrate correctly determined that this amount was 26 more than sufficient to allow the plaintiff to pay the filing fee in this action . . . .”). 27 28 2 17-CV-1364 W (NLS) 1 Permission to proceed IFP is “a matter of privilege and not right[,]” Franklin v. Murphy, 2 745 F.2d 1221, 1231 (9th Cir. 1984), and “ ‘in forma pauperis status may be acquired and 3 lost during the course of litigation.’ ” Baize v. Lloyd, 2014 WL 6090324, at *1 (S.D. 4 Cal. Nov. 13, 2014) (quoting Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at 5 *2 (E.D. Cal. Feb. 9, 2009)). 6 7 8 II. DISCUSSION According to his declaration, Cass earns a gross $5529.29 per month, and his 9 spouse $659.00 per month—both from retirement income. (Pl.’s Mot. [Doc. 2] 2.) This 10 yields a total of $6188.29/month. (See id.) He owns $350,000 equity in his home, other 11 real estate worth $27,500, and two vehicles worth $500 and 700, respectively. (See id. 12 [Doc. 2] 3.) Cass declares that he has a sum total of $250.00 in any financial institution. 13 (See id. [Doc. 2] 2.) 14 According to Cass’ declaration, no one relies on him or his spouse for support. 15 (Pl.’s Mot. [Doc. 2] 3.) Yet Cass declares that he and his spouse spend $1,726.00 16 monthly on rent or a home mortgage payment, in addition to $1,850.00 each month on 17 utilities, $1,400.00 monthly on food, $450.00 monthly on clothing, and $50.00 monthly 18 in taxes. (See id. [Doc. 2] 4–5.) These figures yield monthly expenses in the amount of 19 $5,476.00. (See id.) 20 The filing fee for an ordinary civil action is $400. It is not clear what individual 21 payments might comprise a $1,850 monthly utilities budget. Nor does the motion 22 elucidate why Cass and his spouse could not deduct from a $1,400 monthly food budget 23 or a $450 monthly clothes budget to pay a $400 filing fee without sacrificing the 24 necessities of life. See Adkins, 335 U.S. at 339–40; 28 U.S.C. § 1915. 25 The motion will be denied. 26 27 28 3 17-CV-1364 W (NLS) 1 2 3 III. CONCLUSION & ORDER For the reasons addressed above, the Court DENIES Plaintiff’s motion to proceed IFP. [Doc. 2.] 4 5 IT IS SO ORDERED. 6 7 Dated: July 12, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 17-CV-1364 W (NLS)

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