Nguyen v. Berryhill

Filing 5

ORDER granting 4 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. Signed by Judge Michael M. Anello on 7/27/2017. IFP packet sent to Plaintiff's attorney via U.S. Mail. (acc)

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UNITED STATES DISTRICT COURT

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

TAM PHAN NGUYEN,

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

v.

[Doc. No. 4]

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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

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

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

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a motion to proceed in forma pauperis (“IFP”). Doc. No. 2. The Court denied Plaintiff’s

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motion without prejudice for lacking requisite information. Plaintiff now files a renewed

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application to proceed IFP. For the reasons set forth below, the Court GRANTS

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Plaintiff’s motion to proceed IFP.

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

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

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

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

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

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

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.
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17cv1406-MMA (NLS)

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

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

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

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

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

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Plaintiff states that he receives $194.00 in food stamps, and $269.00 in general

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relief loans per month. Plaintiff is unemployed and has been unemployed for at least the

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past two years. He only has $50.00 in cash, and has no bank accounts. He lives with his

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parents, but his Plaintiff’s total monthly expenses still amount to $463.00. Plaintiff’s

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affidavit sufficiently shows he is unable to pay the fees or post securities required to

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maintain this action. As such, the Court GRANTS Plaintiff’s motion to proceed in forma

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pauperis. The Court has also reviewed Plaintiff’s complaint, and concludes it is not

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subject to sua sponte dismissal under 28 U.S.C. section 1915(e)(2)(B).

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Accordingly, the Court hereby ORDERS as follows:

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1.

The Clerk shall issue a summons as to Plaintiff’s complaint [Doc. No. 1]

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upon Defendant and shall forward it to Plaintiff along with a blank U.S. Marshal Form

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285. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and

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a certified copy of his Complaint and the summons. Upon receipt of this “IFP Package,”

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Plaintiff is directed to complete the Form 285 as completely and accurately as possible,

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and to return it to the U.S. Marshal according to the instructions provided by the Clerk in

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the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a

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copy of the complaint and summons upon Defendant as directed by Plaintiff on the form.

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All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d);

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Fed. R. Civ. P. 4(c)(3).

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2.

Defendant shall reply to the complaint within the time provided by the

applicable provisions of Federal Rule of Civil Procedure 12(a).
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Plaintiff shall serve upon Defendant or, if appearance has been entered by

counsel, upon Defendant’s counsel, a copy of every further pleading or other document
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17cv1406-MMA (NLS)

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submitted for consideration of the Court. Plaintiff shall include with the original paper to

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be filed with the Clerk of the Court a certificate stating the manner in which a true and

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correct copy of any document was served on the Defendant or counsel of Defendant and

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the date of service. Any paper received by a district judge or magistrate judge which has

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not been filed with the Clerk or which fails to include a Certificate of Service may be

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disregarded.

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IT IS SO ORDERED.

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Date: July 27, 2017

_____________________________
Hon. Michael M. Anello
United States District Judge

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17cv1406-MMA (NLS)