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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TIMOTHY LEE CASS,

Case No.: 17-CV-1364 W (NLS)
Plaintiff,

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ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
[DOC. 2]

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,

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Defendant.

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Plaintiff Timothy Lee Cass filed this action on July 5, 2017, seeking review of the

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denial of his application for disability insurance benefits under the Social Security Act.

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(Compl. [Doc. 1].) He thereafter filed the pending motion to proceed in forma pauperis

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(“IFP”) under 28 U.S.C. § 1915. (Pl.’s Mot. [Doc. 2].) The Court decides the matter on

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the papers submitted pursuant to Civ. L.R. 7.1(d)(1). For the reasons outlined below, the

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Court DENIES the IFP motion. [Doc. 2.]

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17-CV-1364 W (NLS)

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I.

LEGAL STANDARD

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

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

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other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court

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to exercise its sound discretion in determining whether the affiant has satisfied the

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statute’s requirement of indigency.”).

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It is well-settled that a party need not be completely destitute to proceed in forma

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pauperis. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948).

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To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient

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which states that one cannot because of his poverty pay or give security for costs . . . and

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still be able to provide himself and dependents with the necessities of life.” Id. at 339

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(internal quotations omitted). At the same time, however, “the same even-handed care

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must be employed to assure that federal funds are not squandered to underwrite, at public

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expense, . . . the remonstrances of a suitor who is financially able, in whole or in material

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

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“[T]he greater power to waive all fees includes the lesser power to set partial fees.”

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Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995).

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The facts as to the affiant’s poverty must be stated “with some particularity,

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definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir.

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1981) (internal quotation omitted). District courts tend to reject IFP applications where

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

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Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (initially permitting Plaintiff to

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proceed in forma pauperis but later requiring him to pay $120 filing fee out of $900

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settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (“[P]laintiff

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possessed savings of $450 and the magistrate correctly determined that this amount was

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more than sufficient to allow the plaintiff to pay the filing fee in this action . . . .”).

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17-CV-1364 W (NLS)

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Permission to proceed IFP is “a matter of privilege and not right[,]” Franklin v. Murphy,

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745 F.2d 1221, 1231 (9th Cir. 1984), and “ ‘in forma pauperis status may be acquired and

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lost during the course of litigation.’ ” Baize v. Lloyd, 2014 WL 6090324, at *1 (S.D.

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Cal. Nov. 13, 2014) (quoting Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at

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*2 (E.D. Cal. Feb. 9, 2009)).

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II.

DISCUSSION
According to his declaration, Cass earns a gross $5529.29 per month, and his

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spouse $659.00 per month—both from retirement income. (Pl.’s Mot. [Doc. 2] 2.) This

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yields a total of $6188.29/month. (See id.) He owns $350,000 equity in his home, other

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real estate worth $27,500, and two vehicles worth $500 and 700, respectively. (See id.

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[Doc. 2] 3.) Cass declares that he has a sum total of $250.00 in any financial institution.

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(See id. [Doc. 2] 2.)

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According to Cass’ declaration, no one relies on him or his spouse for support.

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(Pl.’s Mot. [Doc. 2] 3.) Yet Cass declares that he and his spouse spend $1,726.00

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monthly on rent or a home mortgage payment, in addition to $1,850.00 each month on

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utilities, $1,400.00 monthly on food, $450.00 monthly on clothing, and $50.00 monthly

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in taxes. (See id. [Doc. 2] 4–5.) These figures yield monthly expenses in the amount of

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$5,476.00. (See id.)

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The filing fee for an ordinary civil action is $400. It is not clear what individual

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payments might comprise a $1,850 monthly utilities budget. Nor does the motion

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elucidate why Cass and his spouse could not deduct from a $1,400 monthly food budget

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or a $450 monthly clothes budget to pay a $400 filing fee without sacrificing the

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necessities of life. See Adkins, 335 U.S. at 339–40; 28 U.S.C. § 1915.

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The motion will be denied.

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17-CV-1364 W (NLS)

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III.

CONCLUSION & ORDER
For the reasons addressed above, the Court DENIES Plaintiff’s motion to proceed

IFP. [Doc. 2.]

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IT IS SO ORDERED.

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Dated: July 12, 2017

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17-CV-1364 W (NLS)