Adelmeyer v. Saul

Filing 5

ORDER denying 2 Application to Proceed in forma pauperis. Plaintiff must pay the requisite filing fee on or before April 7, 2021, or her case may be dismissed. Signed by Magistrate Judge Daniel E. Butcher on 2/18/2021. (jpp)

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Case 3:21-cv-00227-DEB Document 5 Filed 02/18/21 PageID.17 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JANET A. , Case No.: 21-cv-00227-DEB Plaintiff, 12 13 v. 14 ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS ANDREW M. SAUL, Commissioner of Social Security, 15 16 [DKT. NO. 2] Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is Plaintiff Janet A.’s Application to Proceed in forma pauperis. Dkt. No. 2. For the reasons set forth below, the Court DENIES the Application. All parties instituting a civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a $400 filing fee. See 28 U.S.C. § 1914(a). The Court may authorize the commencement of a suit without prepayment of fees if the plaintiff submits an affidavit, including a statement of assets, showing he or she is unable to pay the filing fee. See 28 U.S.C. § 1915(a). The affidavit must “state the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal quotations omitted). A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). An affidavit is 1 21-cv-00227-DEB Case 3:21-cv-00227-DEB Document 5 Filed 02/18/21 PageID.18 Page 2 of 3 1 sufficient if it shows the applicant cannot pay the fee “and still be able to provide himself 2 [or herself] and dependents with the necessities of life.” Id. (internal quotations omitted). 3 Here, Plaintiff’s Application states that she and her spouse receive a combined 4 monthly income of $4,325 from real property, gifts, retirement, and self-employment. 5 Dkt. No. 2 at 1–2. Plaintiff reports that she is unemployed. Id. at 2. Plaintiff claims her and 6 her spouse’s monthly expenses exceed their income by $2,250. Dkt. No. 2 at 5 (stating 7 combined monthly expenses are $6,575 including rent or home-mortgage payment, health 8 insurance, utilities, food, recreation, credit card payments, and $3,500 in “Business 9 payroll”).1 However, Plaintiff lists significant assets, with a combined value of $857,500. 10 She also reports a checking/savings account with a balance of $10,000 and a business 11 checking account with an additional balance of $10,000. Id. at 2. Plaintiff also states she 12 and her husband have $800 in cash at hand. Id. 13 Based on the foregoing, the Court DENIES Plaintiff’s Application to proceed in 14 forma pauperis. See Boudreaux v. Saul, No. 20-cv-274-BGS, 2020 U.S. Dist. LEXIS 15 64283, at *2 (S.D. Cal. Apr. 10, 2020) (“Although the application reflects Plaintiff is 16 spending more that he is receiving in income monthly, the Court would be hard pressed to 17 find someone receiving more than $5,000 a month in income should be allowed to proceed 18 at public expense.”). 19 // 20 // 21 // 22 // 23 // 24 25 26 27 28 Plaintiff’s Application appears to be incomplete. On the Application, Plaintiff listed $1,235 as her spouse’s “Regular expenses for operation of business, profession, or farm.” Dkt. No. 2 at 5. Although the form directs Plaintiff to “attach detailed statement,” Plaintiff provided no additional information on this answer. Id. 1 2 21-cv-00227-DEB Case 3:21-cv-00227-DEB Document 5 Filed 02/18/21 PageID.19 Page 3 of 3 1 2 3 4 Plaintiff must pay the requisite filing fee on or before April 7, 2021, or her case may be dismissed. IT IS SO ORDERED. Dated: February 18, 2021 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 21-cv-00227-DEB

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