Harrell v. Berryhill

Filing 4

ORDER Granting 3 Motion for Leave to Proceed in forma pauperis and Referring to Magistrate For Report and Recommendation. Additionally, the Court hereby refers all matters arising in this case to United States Magistrate Judge Karen S. Crawford 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 11/14/2017. (jao)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

JULIE ANN HARRELL,

Case No.: 17-cv-2245 W (KSC)
Plaintiffs,

14
15

v.

16

ORDER GRANTING MOTION TO
PROCEED IFP [DOC. 3] AND
REFERRING TO MAGISTRATE FOR
REPORT & RECOMMENDATION

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

17
18

Defendants.

19
On November 3, 2017, Plaintiff Julie Ann Harrell (“Plaintiff”) filed a complaint

20
21

seeking review of the denial of her claim for disability insurance benefits and

22

supplemental security income benefits under the Social Security Act. Along with the

23

complaint, Plaintiff filed a motion to proceed in forma pauperis (“IFP”) [Doc. 3].

24
25

I.

DISCUSSION

26

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

27

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

28

other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court
1
17-cv-2245 W (KSC)

1

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

2

statute’s 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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

affiant’s poverty must be stated “with some particularity, definiteness, and certainty.”

24

United States v. McQuade, 647 F.2d 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 her declaration, Plaintiff does not have sufficient income to support herself,

28

and lives with the mother of her fiancé, who recently passed away. (IFP App. [Doc. 3] ¶
2
17-cv-2245 W (KSC)

1

6.) Plaintiff has also shown that she does not currently have any possessions of

2

significant value. Therefore, Plaintiff’s IFP motion will be granted.

3
4
5

II.

CONCLUSION & ORDER
For the reasons addressed above, the Court GRANTS Plaintiff’s motion to proceed

6

IFP [Doc. 3]. In light of the Court’s ruling on the IFP motion, the Court orders as

7

follows:

8

1.

9

The United States Marshal shall serve a copy of the Complaint filed on
November 3, 2017 and an accompanying summons upon Defendants as

10

directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be

11

advanced by the United States.

12

2.

13
14

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

15

States Magistrate Judge Karen S. Crawford for a Report & Recommendation in

16

accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1)(c ).

17

If the parties seek to file motions, they shall contact the chambers of Judge

18

Crawford to secure scheduling, filing, and hearing dates. All motion(s) for summary

19

judgment must be filed and served no later than 120 days after the Government files its

20

answer.

21
22

IT IS SO ORDERED.
Dated: November 14, 2017

23
24
25
26
27
28
3
17-cv-2245 W (KSC)