Zavala v. Social Security Administration

Filing 4

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS by Chief Magistrate Judge Gregory B. Wormuth denying without prejudice #2 Motion for Leave to Appeal in forma pauperis. (es)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SALVADOR J. ZAVALA,
Plaintiff,
v.

Civ. No. 24-292 GBW

MARTIN O’MALLEY, Commissioner of the
Social Security Administration,
Defendant.
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
This matter comes before the Court on Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs (Short Form). Doc. 2. For the reasons
given below, Plaintiff’s Application is DENIED without prejudice.
The statute governing proceedings in forma pauperis, 28 U.S.C. § 1915(a),
provides that the Court may authorize the commencement of any suit without
prepayment of fees by a person who submits an affidavit that includes a description of
all assets the person possesses as well as a statement that the person is unable to pay
such fees.
When a district court receives an application for leave to proceed in forma
pauperis, it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted.
Thereafter, if the court finds that the allegations of poverty are untrue or that the
action is frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 F. App’x 879, 884 (10th Cir. 2010) (unpublished) (quoting Ragan
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v. Cox, 305 F.2d 58, 60 (10th Cir. 1962)). “[A]n application to proceed in forma pauperis
should be evaluated in light of the applicant’s present financial status.” Scherer v.
Kansas, 263 F. App’x 667, 669 (10th Cir. 2008) (unpublished) (citing Holmes v. Hardy, 852
F.2d 151, 153 (5th Cir. 1988)). “The statute [allowing a litigant to proceed in forma
pauperis] was intended for the benefit of those too poor to pay or give security for
costs[.]” Adkins v. E.I. DuPont De Nemours & Co., 335 U.S. 331, 344 (1948). While a
litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that
one cannot because of his poverty pay or give security for the costs and still be able to
provide himself and dependents with the necessities of life.” Id. at 339.
The Court will deny Plaintiff’s Motion to proceed in forma pauperis because it
does not have sufficient information about Plaintiff’s monthly income to verify that
Plaintiff is unable to pay the cost of the proceedings. If Plaintiff wishes to refile an
application to proceed in forma pauperis, Plaintiff shall use the Application to Proceed in
District Court Without Prepaying Fees or Costs (Long Form) (AO 239)1, and Plaintiff
shall explicitly state his monthly income and monthly expenses.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Proceed In
Forma Pauperis (doc. 2) is DENIED without prejudice as to the refiling of the
application.

The AO 239 Form may be found at: https://www.uscourts.gov/forms/fee-waiver-applicationforms/application-proceed-district-court-without-prepaying-fees-or
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____________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE

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