(SS)Morris v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY LEON MORRIS, JR., ) Case No.: 1:19-cv-1751- JLT ) 12 Plaintiff, ) ORDER TO PLAINTIFF TO SHOW CAUSE ) WHY HIS MOTION TO PROCEED IN FORMA 13 v. ) PAUPERIS SHOULD NOT BE DENIED ) 14 ANDREW SAUL, ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 17 Plaintiff seeks to proceed in forma pauperis with this action for judicial review of the decision 18 to deny his application for Social Security benefits. (Docs. 1, 2) The Court may authorize the 19 commencement of an action without prepayment of fees “by a person who submits an affidavit that 20 includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such 21 fees or give security therefor.” 28 U.S.C. § 1915(a). Thus, an action may proceed despite a failure to 22 prepay the filing fee only if leave to proceed in forma pauperis is granted by the Court. See Rodriguez 23 v. Cook, 169 F.3d 1176, 1177, 1178 (9th Cir. 1999). 24 The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of 25 privilege and not a right; denial of an in forma pauperis status does not violate the applicant’s right to 26 due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 27 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to 28 proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In 1 making a determination, the Court “must be careful to avoid construing the statute so narrowly that a 2 litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or 3 foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). 4 Plaintiff indicates that he remains employed by Guarda but also notes that he has not received 5 any income since September 2014 because he is “not able to work.” (Doc. 2 at 1-2) According to 6 Plaintiff, in August 2019, he received a workers compensation settlement of about $66,000, “out of 7 which [he] had to pay back family” for what was “borrowed to live on for the past 5 years.” (Id. at 2) 8 In addition, Plaintiff reports that he received a payment of $29,600, which he anticipates paying taxes 9 upon, but does not know the amount that will be due. (Id.) He explains he is “trying to hold on to 10 what [he] can to pay [the] billes each [month]” as well as the taxes when due. (Id.) Plaintiff indicates 11 he currently has $600 in a bank account at Chase and $15,000 in a Bank of America account. (Id.at 3) 12 Significantly, the information provided does not support the conclusion that Plaintiff is unable 13 to provide for himself—or his family—with life’s necessities while paying the Court costs. Although 14 Plaintiff clearly desires to save his remaining funds, it appears that the amount remaining from the 15 payments and available in the bank accounts is more than sufficient to pay the Court filing fees. 16 ORDER 17 Based upon the foregoing, the Court ORDERS: Within 21 days, Plaintiff SHALL show cause 18 in writing why the motion to proceed in forma pauperis should not be denied. 19 Plaintiff is advised that failure to respond timely to this order will result in a 20 recommendation that his motion to proceed in forma pauperis be denied. 21 22 IT IS SO ORDERED. 23 Dated: December 30, 2019 /s/ Jennifer L. Thurston 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28