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

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 BETSY AMY BLANCO, CASE NUMBER: 1:21-cv-00028-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 (Docs. 2, 4, 5) 13 14 15 16 17 On January 7, 2021 Plaintiff filed a complaint in this Court and applied to proceed without 18 prepayment of fees (in forma pauperis) pursuant to 28 U.S.C. § 1915. Docs. 1–2. The Court 19 requested additional information (Doc. 3), and Plaintiff filed the long form application to proceed 20 in forma pauperis on January 21, 2021. Docs. 4–5. 21 I. Legal Standard 22 In order to proceed without prepayment of the filing fee, Plaintiff must submit an affidavit 23 demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). 24 “To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th 25 Cir. 1965). In enacting the in forma pauperis statute, “Congress intended to guarantee that no 26 citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or 27 criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to 28 pay or secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal 1 quotations and citations omitted). 2 The determination whether a party may proceed in forma pauperis is a “matter within the 3 discretion of the trial court . . .” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). To proceed 4 in forma pauperis a plaintiff need not demonstrate that he is completely destitute, but his poverty 5 must prevent him from paying the filing fee and providing himself and his dependents (if any) with 6 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 7 Although there is no bright line rule, courts look to the federal poverty guidelines developed each 8 year by the Department of Health and Human Services. See, e.g., Lint v. City of Boise, No. CV09- 9 72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). 10 II. Findings 11 Plaintiff’s application reflects that her five-person household (1 spouse and 3 dependent 12 children) earns income of $4,800 per month ($57,600 per year), which is substantially more than 13 the 2021 federal poverty guideline for a family of five ($31,040 per year). See 2021 Poverty 14 Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited January 22, 2021). Moreover, 15 although Plaintiff’s application reflects minimal cash reserves, the application reflects that her 16 family’s monthly income ($4,800) exceeds her family’s monthly expenses ($3,833) by $967. Both 17 of these facts suggest an ability to pay the $402 filing fee without sacrificing the necessities of daily 18 life. 19 III. Recommendation 20 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 21 pauperis be denied (Docs. 2, 4, 6). 22 The Clerk of Court is DIRECTED to randomly assign this case to a United States District 23 Judge for resolution of these findings and recommendations pursuant to the provisions of Title 28 24 U.S.C. § 636(b)(l). Within fourteen (14) days from the filing of these findings and 25 recommendations, Plaintiff may file written objections with the court. L.R. 304(b). Such a 26 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 27 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 28 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. 1 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. 4 5 Dated: January 23, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28