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)

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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)

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