Henderson v. Berryhill

Filing 3

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. The Court hereby refers all matters arising in this case to United States Magistrate Judge Nita L. Stormes for a Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1 (c)(1)(c ). Signed by Judge Thomas J. Whelan on 9/1/2017. (jao)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD HENDERSON, Case No.: 17-CV-1752 W (NLS) Plaintiff, 12 13 14 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [DOC. 2] AND REFERRING TO MAGISTRATE FOR REPORT & RECOMMENDATION v. NANCY BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 19 Plaintiff Ronald Henderson filed this action on August 30, 2017, seeking review of 20 the denial of his application for supplemental security income benefits under the Social 21 Security Act. (Compl. [Doc. 1].) He thereafter filed the pending motion to proceed in 22 forma pauperis (“IFP”) under 28 U.S.C. § 1915. (Pl.’s Mot. [Doc. 2].) 23 The Court decides the matter on the papers submitted. For the reasons outlined 24 below, the Court GRANTS the IFP motion. [Doc. 2.] 25 // 26 // 27 28 1 17-CV-1752 W (NLS) 1 I. LEGAL STANDARD 2 The determination of indigency falls within the district court’s discretion. 3 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on 4 other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court 5 to exercise its sound discretion in determining whether the affiant has satisfied the 6 statute’s requirement of indigency.”). 7 It is well-settled that a party need not be completely destitute to proceed in forma 8 pauperis. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 9 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 10 which states that one cannot because of his poverty pay or give security for costs . . . and 11 still be able to provide himself and dependents with the necessities of life.” Id. at 339 12 (internal quotations omitted). At the same time, however, “the same even-handed care 13 must be employed to assure that federal funds are not squandered to underwrite, at public 14 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 15 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 16 “[T]he greater power to waive all fees includes the lesser power to set partial fees.” 17 Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995). 18 The facts as to the affiant’s poverty must be stated “with some particularity, 19 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 20 1981). District courts tend to reject IFP applications where the applicant can pay the 21 filing fee with acceptable sacrifice to other expenses. See, e.g., Allen v. Kelly, 1995 WL 22 396860 at *2 (N.D. Cal. 1995) (initially permitting Plaintiff to proceed in forma pauperis 23 but later requiring him to pay $120 filing fee out of $900 settlement proceeds); Ali v. 24 Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (“[P]laintiff possessed savings of $450 25 and the magistrate correctly determined that this amount was more than sufficient to 26 allow the plaintiff to pay the filing fee in this action . . . .”). Permission to proceed IFP is 27 28 2 17-CV-1752 W (NLS) 1 “a matter of privilege and not right[,]” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 2 1984), and “ ‘in forma pauperis status may be acquired and lost during the course of 3 litigation.’ ” Baize v. Lloyd, 2014 WL 6090324, at *1 (S.D. Cal. Nov. 13, 2014) 4 (quoting Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 5 2009)). 6 7 II. DISCUSSION 8 Henderson has satisfied his burden of demonstrating that he is entitled to IFP 9 status. According to his declaration, he is homeless and has no income except food 10 stamps and San Diego County General Relief. (Pl.’s Mot. [Doc. 2] 2–3; Pl.’s Decl. [Doc. 11 2-1] ¶ 1.) He has not been employed in nearly seven years. (See Pl.’s Mot. [Doc. 2] 2.) 12 He does not have any funds in bank accounts, nor any other valuable assets. (See id. 13 [Doc. 2] 2–3.) 14 The filing fee for an ordinary civil action is $400. Based on the foregoing, 15 Henderson has demonstrated that he lacks the means to pay the filing fee without 16 sacrificing the necessities of life. See Adkins, 335 U.S. at 339–40. Accordingly, 17 Henderson demonstrates entitlement to IFP status. See 28 U.S.C. § 1915. 18 19 III. CONCLUSION & ORDER For the reasons addressed above, the Court GRANTS Plaintiff’s motion to proceed 20 21 IFP. [Doc. 2.] In light of the Court’s ruling on the IFP motion, the Court orders as 22 follows: 23 // 24 // 25 // 26 // 27 28 3 17-CV-1752 W (NLS) 1 1. 2 on August 30, 2017 and an accompanying summons upon Defendants as 3 directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be 4 advanced by the United States. 5 2. 6 the applicable provisions of the Federal Rules of Civil Procedure. The United States Marshal shall serve a copy of the Complaint filed Defendant shall respond to the Complaint within the time provided by 7 Additionally, the Court hereby REFERS all matters arising in this case to United 8 States Magistrate Judge Nita L. Stormes for a Report & Recommendation in accordance 9 with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1)(c ). 10 If the parties seek to file motions, they shall contact the chambers of Judge Stormes 11 to secure scheduling, filing, and hearing dates. All motion(s) for summary judgment 12 must be filed and served no later than 120 days after the Government files its answer. 13 14 IT IS SO ORDERED. 15 16 Dated: September 1, 2017 17 18 19 20 21 22 23 24 25 26 27 28 4 17-CV-1752 W (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?