(SS) Gutierrez v. Commissioner of Social Security ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 Patricia Gutierrez CASE NUMBER: 1:21-cv-00181-GSA 7 Plaintiff, 8 FINDINGS AND v. RECOMMENDATIONS TO DENY 9 APPLICATION TO PROCEED IN ANDREW SAUL, Commissioner of Social FORMA PAUPERIS AND TO 10 Security, REQUIRE FILING FEE PAYMENT, AND DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A UNITED Defendant. STATES DISTRICT JUDGE 12 (Doc. 2) 13 14 15 16 17 On February 12, 2021 Plaintiff filed a complaint in this Court and applied to proceed 18 without prepayment of fees (in forma pauperis) pursuant to 28 U.S.C. § 1915. Docs. 1–2. 19 I. Legal Standard 20 In order to proceed without prepayment of the filing fee, Plaintiff must submit an affidavit 21 demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). 22 “To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th 23 Cir. 1965). In enacting the in forma pauperis statute, “Congress intended to guarantee that no 24 citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or 25 criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to 26 pay or secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal 27 quotations and citations omitted). 28 The determination whether a party may proceed in forma pauperis is a “matter within the 1 discretion of the trial court . . .” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). To proceed 2 in forma pauperis, a plaintiff need not demonstrate that he is completely destitute, but his poverty 3 must prevent him from paying the filing fee and providing himself and his dependents (if any) with 4 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 5 Although there is no bright line rule, courts look to the federal poverty guidelines developed each 6 year by the Department of Health and Human Services. See, e.g., Lint v. City of Boise, No. CV09- 7 72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 8 II. Findings 9 Plaintiff’s application reflects no employment, minimal cash on hand and no other liquid 10 assets. However, Plaintiff’s application also reflects that she has no dependents and that her spouse 11 receives income of $3,415 per month ($40,980) per year, which is substantially more than the 2021 12 federal poverty guideline for a household of two ($17,420 per year). See 2021 Poverty Guidelines, 13 https://aspe.hhs.gov/poverty-guidelines (last visited February 17, 2021). This suggests an ability 14 to pay the $402 filing fee without sacrificing the necessities of daily life. 15 III. Recommendation 16 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 17 pauperis be denied (Doc. 2). 18 The Clerk of Court is DIRECTED to randomly assign this case to a United States District 19 Judge for resolution of these findings and recommendations pursuant to the provisions of Title 28 20 U.S.C. § 636(b)(l). Within fourteen (14) days from the filing of these findings and 21 recommendations, Plaintiff may file written objections with the court. L.R. 304(b). Such a 22 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 23 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 24 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. 25 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 IT IS SO ORDERED. 27 28 Dated: February 17, 2021 /s/ Gary S. Austin 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28