Stone v. Berryhill

Filing 4

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis and Dismissing Complaint. Plaintiff shall have until September 6, 2017 to reinstate this case by paying the filing fee. Signed by Judge Thomas J. Whelan on 8/23/2017. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHELLEY E. STONE,

Case No.: 17-CV-1689 W (KSC)
Plaintiff,

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v.

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ORDER DENYING MOTION TO
PROCEED IFP [DOC. 2] AND
DISMISSING COMPLAINT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,

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Defendant.

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On August 22, 2017, Plaintiff Shelley E. Stone filed a complaint seeking review of

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the denial of her claim for disability insurance benefits under the Social Security Act.

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Along with the complaint, Plaintiff filed a motion to proceed in forma pauperis (“IFP”).

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17-CV-1689 W (KSC)

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I.

INTRODUCTION

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The determination of indigency falls within the district court’s discretion.

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California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on

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other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court

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to exercise its sound discretion in determining whether the affiant has satisfied the

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statute’s requirement of indigency.”).

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It is well-settled that a party need not be completely destitute to proceed in forma

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pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To

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satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient

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which states that one cannot because of his poverty pay or give security for costs ... and

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still be able to provide himself and dependents with the necessities of life.” Id. at 339.

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At the same time, however, “the same even-handed care must be employed to assure that

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federal funds are not squandered to underwrite, at public expense, ... the remonstrances of

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

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

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District courts, therefore, tend to reject IFP applications where the applicant can

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pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v.

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Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds,

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Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not

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abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly

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salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D.

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Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay

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$120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130

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(E.D. Pa. 1982) (in forma pauperis application denied: “plaintiff possessed savings of

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$450 and the magistrate correctly determined that this amount was more than sufficient to

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allow the plaintiff to pay the filing fee in this action.”). Moreover, the facts as to the

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affiant’s poverty must be stated “with some particularity, definiteness, and certainty.”
United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
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17-CV-1689 W (KSC)

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Having read and considered the papers submitted, the Court finds that based on the

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current record, Plaintiff does not meet the requirements for IFP status under 28 U.S.C. §

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1915. According to her declaration, Plaintiff receives $1168 in social security benefits,

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and $190 in food stamps, which is just enough to meet her monthly expenses totaling

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$1360. (Motion [Doc. 2] ¶¶ 1, 8.) However, Plaintiff also has a $25,000 IRA. (Id. ¶ 4.)

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In light of the IRA, Plaintiff does not meet the requirements for IFP status.

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For the foregoing reasons, the Court DENIES Plaintiff’s motion to proceed IFP

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[Doc. 2] and DISMISSES the Complaint. Plaintiff shall have until September 6, 2017

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to reinstate this case by paying the filing fee.

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IT IS SO ORDERED.
Dated: August 23, 2017

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17-CV-1689 W (KSC)