Nguyen v. Berryhill

Filing 3

ORDER Denying 2 Motion to Proceed in Forma Pauperis. Within fourteen days of the date of this Order, Plaintiff shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for IFP containing the requisite information regarding his ability to pay the costs of commencing this action. Signed by Judge Michael M. Anello on 7/14/2017. (lrf)

1
2
3
4

UNITED STATES DISTRICT COURT

5
6
7
8
9
10
11
12

SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 17cv1406-MMA (NLS)

TAM PHAN NGUYEN,

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

v.

[Doc. No. 2]

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

13
14

On July 12, 2017, Plaintiff Tam Phan Nguyen filed this social security appeal

15

pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the

16

denial of his application for disability benefits. Doc. No. 1. Plaintiff simultaneously filed

17

a motion to proceed in forma pauperis (“IFP”). Doc. No. 2. For the reasons set forth

18

below, the Court DENIES without prejudice Plaintiff’s motion to proceed IFP.

19
20

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

21

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

22

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

23

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. §

24

1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

25

forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

26

1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

27

E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). But “the same even-

28

handed care must be employed to assure that federal funds are not squandered to
-1-

17cv1406-MMA (NLS)

1

underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

2

who is financially able, in whole or in material part, to pull his own oar.” Temple v.

3

Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

4

Plaintiff does not provide sufficient information for the Court to determine whether

5

he should be granted IFP status. On Plaintiff’s application, Plaintiff does not adequately

6

respond to question 2, part b, which requests that he list “the date of [his] last

7

employment, the amount of [his] take-home salary or wages and pay period and the name

8

and address of [his] last employer.” See Doc. No. 2. Instead, Plaintiff only writes “about

9

2010 or 2011, not sure.” See Doc. No. 2. Also, Plaintiff does not respond fully to

10

question 3, which requires that applicants respond either “yes” or “no” to every subpart.

11

Further, Plaintiff submitted an outdated version of the IFP application form. If Plaintiff

12

wishes to file a renewed motion to proceed IFP, Plaintiff must use the updated form,

13

which he may access on the Court’s website on its “Forms” page1 or by visiting the Clerk

14

of Court’s office in person.2 Plaintiff must answer every question.

15

Accordingly, the Court DENIES without prejudice Plaintiff’s motion to proceed

16

IFP. Doc. No. 2; see Civ. L.R. 3.2. Within fourteen days of the date of this Order,

17

Plaintiff shall either: (a) pay the requisite $400 filing fee, or (b) file a renewed motion for

18

IFP containing the requisite information regarding his ability to pay the costs of

19

commencing this action. If Plaintiffs fail to timely submit payment or a renewed motion

20

for IFP, this case shall be dismissed.

21

IT IS SO ORDERED.

22
23

Date: July 14, 2017

24
25
26

27

_____________________________
Hon. Michael M. Anello
United States District Judge

1

28

https://www.casd.uscourts.gov/Attorneys/Lists/Forms/Attachments/59/AO239_Application%20to%20P
roceed%20Without%20Prepayment.pdf
2
The Clerk’s Office is located at 333 West Broadway, Suite 420, San Diego, California, 92101.
-2-

17cv1406-MMA (NLS)