Fudge v. Berryhill

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis and Referring to Magistrate for Report and Recommendation. US Marshal shall effect service of complaint. If the parties seek to file motions, they shall contact the chambers of Judge Adler to secure scheduling, filing, and hearing dates. All motion(s) for summary judgment must be filed and served no later than 120 days after the Government files its answer. Signed by Judge Thomas J. Whelan on 8/21/2017. (jao)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARMINE B. FUDGE, Case No.: 17-CV-1423 W (JMA) Plaintiff, 12 13 14 ORDER GRANTING MOTION TO PROCEED IFP [DOC. 2] AND REFERRING TO MAGISTRATE FOR REPORT & RECOMMENDATION v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, 15 16 Defendant. 17 18 On July 13, 2017, Plaintiff Carmine B. Fudge (“Plaintiff”) filed a complaint seeking 19 review of the denial of his claim for disability insurance benefits under the Social Security 20 Act. Along with the complaint, Plaintiff filed a motion to proceed in forma pauperis 21 (“IFP”) [Doc. 2]. 22 23 24 I. INTRODUCTION The determination of indigency falls within the district court’s discretion. 25 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other 26 grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to 27 1 17-CV-1423 W (JMA) 1 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 2 requirement of indigency.”). 3 It is well-settled that a party need not be completely destitute to proceed in forma 4 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To 5 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which 6 states that one cannot because of his poverty pay or give security for costs ... and still be 7 able to provide himself and dependents with the necessities of life.” Id. at 339. At the 8 same time, however, “the same even-handed care must be employed to assure that federal 9 funds are not squandered to underwrite, at public expense, ... the remonstrances of a suitor 10 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 11 Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). 12 District courts, therefore, tend to reject IFP applications where the applicant can pay 13 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 14 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 15 F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring 16 partial fee payment from prisoner with $14.61 monthly salary and $110 per month from 17 family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially 18 permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900 19 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (in forma 20 pauperis application denied: “plaintiff possessed savings of $450 and the magistrate 21 correctly determined that this amount was more than sufficient to allow the plaintiff to pay 22 the filing fee in this action.”). Moreover, the facts as to the affiant’s poverty must be stated 23 “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 24 938, 940 (9th Cir. 1981). 25 Having read and considered the papers submitted, the Court finds that based on the 26 current record, Plaintiff meets the requirements for IFP status under 28 U.S.C. § 1915. 27 According to his declaration, Plaintiff does not have sufficient income to support himself. 2 17-CV-1423 W (JMA) 1 He receives $337 a month in public assistance, and $194 in food stamps. (Motion ¶ 1.) He 2 has no other income. (Id.) Plaintiff’s monthly expenses total $354, of which he allocates 3 only $110 per month to utilities / housing, and $194 in food. (Id. ¶ 8.) He also does not 4 allocate any payments for transportation, and does not have any possessions of significant 5 value. (Id. ¶¶ 8, 5.) Therefore, Plaintiff’s IFP motion is GRANTED. 6 7 8 9 10 II. CONCLUSION & ORDER For the reasons addressed above, the Court GRANTS Plaintiff’s motion to proceed IFP [Doc. 2]. In light of the Court’s ruling on the IFP motion, the Court orders as follows: 17 The United States Marshal shall serve a copy of the Complaint filed on July 13, 2017 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United States. 2. Defendant shall respond to the Complaint within the time provided by the applicable provisions of the Federal Rules of Civil Procedure. Additionally, the Court hereby REFERS all matters arising in this case to United States Magistrate Judge Jan M. Adler for a Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1)(c ). If the parties seek to file motions, they shall contact the chambers of Judge Adler to 18 secure scheduling, filing, and hearing dates. All motion(s) for summary judgment must be 19 filed and served no later than 120 days after the Government files its answer. 11 12 13 14 15 16 20 21 1. IT IS SO ORDERED. Dated: August 21, 2017 22 23 24 25 26 27 3 17-CV-1423 W (JMA)

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