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

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 DORALINDA LOPEZ CASE NUMBER: 1:21-cv-01558-GSA 7 Plaintiff, 8 FINDINGS AND v. RECOMMENDATIONS TO DENY 9 APPLICATION TO PROCEED IN KILOLO KIJAKAZI, acting FORMA PAUPERIS WITHOUT 10 Commissioner of Social Security, PREJUDICE AND DIRECTING CLERK OF COURT TO RANDOMLY 11 ASSIGN A UNITED STATES Defendant. DISTRICT JUDGE 12 (Doc. 3) 13 14 On October 22, 2021 Plaintiff filed a complaint in this Court and applied to proceed without 15 prepayment of fees (in forma pauperis) pursuant to 28 U.S.C. § 1915. Docs. 1–3. 16 I. Legal Standard 17 In order to proceed without prepayment of the filing fee, Plaintiff must submit an affidavit 18 demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). 19 “To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th 20 Cir. 1965). In enacting the in forma pauperis statute, “Congress intended to guarantee that no 21 citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or 22 criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to 23 pay or secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal 24 quotations and citations omitted). 25 The determination whether a party may proceed in forma pauperis is a “matter within the 26 discretion of the trial court . . .” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). To proceed 27 in forma pauperis, a plaintiff need not demonstrate that he is completely destitute, but his poverty 28 1 must prevent him from paying the filing fee and providing himself and his dependents (if any) with 2 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 3 Although there is no bright line rule, courts look to the federal poverty guidelines developed each 4 year by the Department of Health and Human Services. See, e.g., Lint v. City of Boise, No. CV09- 5 72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 6 II. Findings 7 Plaintiff’s application is essentially blank. She answered “no” as to whether she is currently 8 employed in prison, she indicated her spouse’s name, and she indicated she has no dependents. She 9 completed no other fields, including indicating whether she has any current assets, whether she 10 received any income from any source within the last 12 months and, if so, how much. 11 III. Recommendation 12 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 13 pauperis be denied without prejudice and Plaintiff be directed to file a completed IFP application 14 or pay the filing fee. 15 The Clerk of Court is DIRECTED to randomly assign this case to a United States District 16 Judge for resolution of these findings and recommendations pursuant to 28 U.S.C. § 636(b)(l). 17 Within fourteen (14) days from the filing of these findings and recommendations, Plaintiff 18 may file written objections with the court. L.R. 304(b). Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 20 failure to file objections within the specified time may result in the waiver of rights on appeal. 21 Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 22 1391, 1394 (9th Cir. 1991)). 23 Alternatively, within fourteen (14) days of these findings and recommendations Plaintiff 24 my file a revised application. Plaintiff should use the latest published version of the short form IFP 25 application (AO 240) and complete it to the best of her ability. If the answer to any particular 26 question is “no” or “zero” she should indicate that rather than leaving the field blank. 27 IT IS SO ORDERED. 28 1 Dated: October 25, 2021 /s/ Gary S. Austin 2 UNITED STATES MAGISTRATE JUDGE 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