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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 C.C.R, Case No. 1:21-cv-0640-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING LUZ 13 v. LORA’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING 14 COMMISSIONER OF SOCIAL SECURITY, CLERK OF THE COURT TO RANDOMLY ASSIGN MATTER TO DISTRICT JUDGE 15 Defendant. (ECF Nos. 5, 7) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS 18 19 C.C.R. (“Plaintiff”), by his guardian ad litem, Luz Lora, filed a complaint in this action 20 seeking review of the final decision of the Commissioner of Social Security denying disability 21 benefits. (ECF No. 1.) Plaintiff did not pay the filing fee in this action and instead Ms. Lora 22 filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) 23 However, the Court found that Plaintiff’s application did not provide sufficient information for 24 the Court to determine if she is entitled to proceed in this action without prepayment of fees. 25 In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an 26 affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 27 § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 1 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to 2 proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis 3 status does not violate the applicant’s right to due process”). A plaintiff need not be absolutely 4 destitute to proceed in forma pauperis and the application is sufficient if it states that due to his 5 poverty he is unable to pay the costs and still be able to provide himself and his dependents with 6 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 7 Whether to grant or deny an application to proceed without prepayment of fees is an exercise of 8 the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 9 In assessing whether a certain income level meets the poverty threshold under Section 10 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department 11 of Health and Human Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 12 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 13 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 14 Based on the information provided in the initial application, Ms. Lora’s income was 15 $22,800 per year. In the current application, Plaintiff reports income of $2,800.00 per month, 16 making her income $33,600.00 per year. The 2021 Poverty Guidelines for the 48 contiguous 17 states for a household of two is $17,420.00. 2021 Poverty Guidelines, 18 https://aspe.hhs.gov/poverty-guidelines (last visited March 15, 2021). Based on the information 19 provided, Ms. Lora’s income is almost approximately twice the poverty level for a family of two. 20 Further, Ms. Lora lists expenses totaling $1,680.00 per month, leaving her approximately 21 $1,200.00 of income beyond her expenses each month. The Court finds that Ms. Lora has the 22 resources to pay the filing fee and is not entitled to proceed without prepayment of fees in this 23 action. 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Ms. Lora’s application to proceed without prepayment of fees be DENIED; and 26 2. Plaintiff be ordered to pay the filing fee of $402.00 in this action. 27 The Clerk of the Court is HEREBY DIRECTED to randomly assign this action to a 1 This findings and recommendations is submitted to the district judge assigned to this 2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 3 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 4 | and recommendations with the court. Such a document should be captioned “Objections to 5 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 6 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 7 | Plaintiff is advised that failure to file objections within the specified time may result in the 8 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 9 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 i IT IS SO ORDERED. DAM Le 12 | Dated: _May 11, 2021 _ OO UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28