Steele v. Berryhill

Filing 4

ORDER Granting 3 Motion to Proceed in Forma Pauperis. The United States Marshal shall serve a copy of the Complaint filed on September 21, 2017 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. Marshal Form 285. Signed by Magistrate Judge Barbara Lynn Major on 09/26/2017. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv1923-LAB (BLM)

JO ANN STEELE,

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting Commissioner
of Social Security,

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[ECF No. 3]

Defendant.

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On September 21, 2017, Plaintiff filed a Complaint seeking judicial review of a decision

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by the Commissioner of Social Security denying her application for disability benefits and

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supplemental security income. ECF No. 1. Before this Court is a Motion to Proceed In Forma

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Pauperis (“IFP”), filed by Plaintiff Jo Ann Steele. ECF No. 3.

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All parties instituting any civil action, suit, or proceeding in a district court of the United

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States must pay a filing fee. 28 U.S.C. § 1914. An action may proceed despite a plaintiff’s

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failure to prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a), which states:

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[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding . . . without
prepayment of fees or security therefor, by a person who submits an
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17cv1923-LAB (BLM)

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affidavit that includes a statement of all assets such [person]
possesses that the person is unable to pay such fees or give security
therefor.

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

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v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 194

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(1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion in

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determining whether the affiant has satisfied the statute’s requirement of indigency.”).

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It is well-settled that a party need not be completely destitute to proceed IFP. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28

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U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of

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his poverty pay or give security for costs . . . and still be able to provide [for] himself and

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dependents with the necessities of life.” Id. at 339. At the same time, “the same even-handed

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care must be employed to assure that federal funds are not squandered to underwrite, at public

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expense, . . . the remonstrances of a suitor who is financially able, in whole or in material part,

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to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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District courts tend to reject IFP applications where the applicant can pay the filing fee

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with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 841 F. Supp.

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316 (N.D. Cal. 1994), vacated in part on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th

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Cir. 1995) (finding that district court did not abuse its discretion in requiring partial fee payment

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from prisoner with $14.61 monthly salary and $110 per month from family); Allen v. Kelley,

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1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff initially permitted to proceed IFP, later required

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

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(E.D. Pa. 1982) (IFP application denied because the plaintiff possessed savings of $450 and that

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was more than sufficient to pay the filing fee). Moreover, the facts as to the affiant’s poverty

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must be stated “with some particularity, definiteness, and certainty.” United States v. McQuade,

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647 F.2d 938, 940 (9th Cir. 1981).

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Here, Plaintiff’s total monthly income is $600 and her spouse’s monthly income is $0. ECF

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No. 2 at 1-2. Plaintiff was earning approximately $700 per month from her employment during

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the past twelve months, but plaintiff’s income varies because it is based on commission. Id.
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Plaintiff and his spouse own a motor vehicle valued at $15,000 and their checking account has

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$209 in it. Id. at 2-3. Plaintiff notes that her “mother is helping [her] when she can.” Id. at 1.

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Plaintiff and her spouse have monthly expenses of $1,718. See id. at 4-5. Based on the

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information provided, the Court finds that Plaintiff is unable to pay the required filing fee.

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Accordingly, Plaintiff’s motion to proceed IFP is GRANTED.

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In light of the Court’s ruling on the IFP motion, IT IS FURTHER ORDERED:

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1.

The United States Marshal shall serve a copy of the Complaint filed on September

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21, 2017 and an accompanying summons upon Defendant as directed by Plaintiff on U.S.

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Marshal Form 285. All costs of service shall be advanced by the United States.

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2.

Plaintiff shall serve upon Defendant, or, if appearance has been entered by

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counsel, upon Defendant’s counsel, a copy of every further pleading or document submitted for

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consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk

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of Court a certificate stating the manner in which a true and correct copy of any document was

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served on Defendant or Defendant’s counsel and the date of service. Any paper received by a

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District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include

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a Certificate of Service will be disregarded.

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IT IS SO ORDERED.

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Dated: 9/26/2017

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