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)
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)
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?