Norris v. Berryhill

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis and Referring to Magistrate for Report and Recommendation. Signed by Judge Thomas J. Whelan on 3/14/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICKY EARL NORRIS,

Case No.: 18-CV-0469 W (KSC)
Plaintiff,

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ORDER GRANTING MOTION TO
PROCEED IFP [DOC. 2] AND
REFERRING TO MAGISTRATE FOR
REPORT & RECOMMENDATION

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

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Defendant.

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On March 5, 2018, Plaintiff Ricky Earl Norris (“Plaintiff”) filed a complaint seeking

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review of the denial of his claim for disability insurance benefits under the Social Security

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Act. Along with the complaint, Plaintiff filed a motion to proceed in forma pauperis

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(“IFP”) [Doc. 2].

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I.

DISCUSSION
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 other

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

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exercise its sound discretion in determining whether the affiant has satisfied the statute’s

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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 which

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

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

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

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

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

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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 pay

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

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851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59

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F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring

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partial fee payment from prisoner with $14.61 monthly salary and $110 per month from

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family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially

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permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900

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settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (in forma

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pauperis application denied: “plaintiff possessed savings of $450 and the magistrate

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correctly determined that this amount was more than sufficient to allow the plaintiff to pay

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the filing fee in this action.”). Moreover, the facts as to the affiant’s poverty must be stated

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“with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d

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938, 940 (9th Cir. 1981).

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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 meets the requirements for IFP status under 28 U.S.C. § 1915.

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According to his declaration, Plaintiff receives $192 in food stamps. (IFP App. [Doc. 2] ¶

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1.) Although he has $800 in cash, he has no other income, and states he is being

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18-CV-0469 W (KSC)

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supported by his girlfriend. (Id. ¶¶ 1, 4, 12.) Plaintiff’s only asset is his car, which he

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estimates is worth $3,000. (Id. ¶ 5.) Based on these facts, Plaintiff’s IFP motion will be

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granted.

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II.

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

IFP [Doc. 2].
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 ).
If the parties seek to file motions, they shall contact the chambers of Judge Crawford

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

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be filed and served no later than 120 days after the Government files its answer.

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IT IS SO ORDERED.
Dated: March 14, 2018

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18-CV-0469 W (KSC)