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)

Download PDF
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 GRANTING MOTION TO PROCEED IN FORMA PAUPERIS Plaintiff, v. [Doc. No. 4] 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. The Court denied Plaintiff’s 18 motion without prejudice for lacking requisite information. Plaintiff now files a renewed 19 application to proceed IFP. For the reasons set forth below, the Court GRANTS 20 Plaintiff’s motion to proceed IFP. 21 22 DISCUSSION All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 25 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 26 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in 27 forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 28 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. -1- 17cv1406-MMA (NLS) 1 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). But “the same even- 2 handed care must be employed to assure that federal funds are not squandered to 3 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor 4 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 5 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 6 Plaintiff states that he receives $194.00 in food stamps, and $269.00 in general 7 relief loans per month. Plaintiff is unemployed and has been unemployed for at least the 8 past two years. He only has $50.00 in cash, and has no bank accounts. He lives with his 9 parents, but his Plaintiff’s total monthly expenses still amount to $463.00. Plaintiff’s 10 affidavit sufficiently shows he is unable to pay the fees or post securities required to 11 maintain this action. As such, the Court GRANTS Plaintiff’s motion to proceed in forma 12 pauperis. The Court has also reviewed Plaintiff’s complaint, and concludes it is not 13 subject to sua sponte dismissal under 28 U.S.C. section 1915(e)(2)(B). 14 Accordingly, the Court hereby ORDERS as follows: 15 1. The Clerk shall issue a summons as to Plaintiff’s complaint [Doc. No. 1] 16 upon Defendant and shall forward it to Plaintiff along with a blank U.S. Marshal Form 17 285. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and 18 a certified copy of his Complaint and the summons. Upon receipt of this “IFP Package,” 19 Plaintiff is directed to complete the Form 285 as completely and accurately as possible, 20 and to return it to the U.S. Marshal according to the instructions provided by the Clerk in 21 the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a 22 copy of the complaint and summons upon Defendant as directed by Plaintiff on the form. 23 All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); 24 Fed. R. Civ. P. 4(c)(3). 25 26 27 28 2. Defendant shall reply to the complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 3. 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 -2- 17cv1406-MMA (NLS) 1 submitted for consideration of the Court. Plaintiff shall include with the original paper to 2 be filed with the Clerk of the Court a certificate stating the manner in which a true and 3 correct copy of any document was served on the Defendant or counsel of Defendant and 4 the date of service. Any paper received by a district judge or magistrate judge which has 5 not been filed with the Clerk or which fails to include a Certificate of Service may be 6 disregarded. 7 IT IS SO ORDERED. 8 9 10 11 Date: July 27, 2017 _____________________________ Hon. Michael M. Anello United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 17cv1406-MMA (NLS)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?