(SS) Ferreira v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CECILIA M. FERREIRA, Case No. 1:20-cv-000509-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND 14 COMMISSIONER OF SOCIAL SECURITY, DIRECTING CLERK OF THE COURT TO RANDOMLY ASSIGN MATTER TO 15 Defendant. DISTRICT JUDGE 16 (ECF No. 7) 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 On April 8, 2020, Cecilia M. Ferreira (“Plaintiff”) filed the complaint in this action 20 seeking judicial review of the final decision of Defendant Commissioner of Social Security 21 (“Defendant”) denying her application for benefits under the Social Security Act. (ECF No. 1.) 22 Plaintiff also filed an application to proceed in forma pauperis without prepayment of the filing 23 fee on the same day. (ECF No. 3.) The Court reviewed Plaintiff’s application to proceed in 24 forma pauperis and found that it appeared that Plaintiff was not entitled to proceed without 25 prepayment of fees. (ECF No. 4.) Plaintiff was ordered to file a long form application to 26 proceed without prepayment of fees. (Id.) 27 On May 2, 2020, Plaintiff filed a long form application to proceed without prepayment of fees. (ECF No. 5.) Again, upon review of the application, the Court found that it did not appear 1 that Plaintiff was entitled to proceed in this action without prepayment of fees. (ECF No. 6.) 2 Plaintiff was ordered to file a long form application or pay the filing fee. (Id.) Currently before 3 the Court is Plaintiff’s second long form application to proceed in this action without prepayment 4 of fees filed on May 25, 2020. (ECF No. 7.) 5 In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an 6 affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 7 § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and 8 not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 9 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to 10 proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis 11 status does not violate the applicant’s right to due process”). A plaintiff need not be absolutely 12 destitute to proceed in forma pauperis and the application is sufficient if it states that due to his 13 poverty he is unable to pay the costs and still be able to provide himself and his dependents with 14 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 15 Whether to grant or deny an application to proceed without prepayment of fees is an exercise of 16 the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 17 As Plaintiff was previously advised in assessing whether a certain income level meets the 18 poverty threshold under Section 1915(a)(1), courts look to the federal poverty guidelines 19 developed each year by the Department of Health and Human Services. See, e.g., Paco v. 20 Myers, No. CIV. 13-00701 ACK, 2013 WL 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of 21 Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited 22 therein). The 2020 Poverty Guidelines for the 48 contiguous states for a household of one is 23 $12,760. 2020 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited May 4, 24 2020). Based on the information provided, the Court finds that Plaintiff is not entitled to proceed 25 without prepayment of fees in this action. 26 On her application, Plaintiff has listed income of $4,478 per month which would be 27 $53,736 per year. Even assuming that Plaintiff has made yet another error in completing the wow VV YU MARE SEA MVE PIO Vee TOY VM VI 1 | double the poverty level for a household of one. Plaintiff's claimed expenses are less than her 2 | monthly income and she has $600.00 in her checking account. 3 Based on the current application, the court finds that Plaintiff has the ability to pay the 4 | filing fee in this action without being deprived of the necessities of life and is not entitled to 5 | proceed without prepayment of fees in this action. 6 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff's application to 7 | proceed without prepayment of fees be denied and Plaintiff be ordered to pay the $400.00 filing 8 | fee in this action. 9 The Clerk of the Court is HEREBY DIRECTED to randomly assign this action to a 10 | district judge. 11 This findings and recommendations is submitted to the district judge assigned to this 12 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 13 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 14 | and recommendations with the court. Such a document should be captioned “Objections to 15 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 16 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 17 | Plaintiff is advised that failure to file objections within the specified time may result in the 18 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 19 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: _May 26, 2020_ ef 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28