(SS) Beyer v. Commissioner of Social Security ( 2023 )

2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 MARTIN JONATHAN BEYER, CASE NUMBER: 1:23-cv-01041-GSA 7 Plaintiff, 8 FINDINGS AND v. RECOMMENDATIONS TO DENY 9 APPLICATION TO PROCEED IN KILOLO KIJAKAZI, Commissioner of FORMA PAUPERIS AND TO 10 Social Security, REQUIRE FILING FEE PAYMENT, AND DIRECTING CLERK TO 11 RANDOMLY ASSIGN A UNITED Defendant. STATES DISTRICT JUDGE 12 (Doc. 2) 13 14 15 16 17 On July 12, 2023 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. 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 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 that his two-person household (1 spouse and no dependent 10 children) receives monthly income ($1,600), disability ($1100), and food stamp payments ($20), 11 totaling $2,620 per month ($31,440) per year), which is substantially in excess (about 160%) of the 12 federal poverty guidelines for a household of 2 ($19,720).1 13 The application also reflects no cash on hand and $3,250 in monthly expenses which 14 exceeds monthly income. Although Plaintiff’s budget does appear to be tight, the monthly expenses 15 do suggest at least some discretionary spending beyond strict necessity, including $240 total for 16 phone and cable (which is not to suggest these are not necessary expenses, just that the amounts 17 are high), $600 for groceries, $400 for gas, $350 for miscellaneous needs, and $310 per month car 18 payment on a vehicle Plaintiff estimates has $2,100 in equity. These facts, in addition to the 19 significant gap between the household income and federal poverty line, suggest the ability to pay 20 the $402 filing fee without sacrificing the necessities of daily life. 21 III. Recommendation 22 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 23 pauperis be denied (Doc. 2). 24 The Clerk of Court is DIRECTED to randomly assign this case to a United States District 25 Judge for resolution of these findings and recommendations pursuant to the provisions of Title 28 26 U.S.C. § 636(b)(l). Within fourteen (14) days from the filing of these findings and 27 recommendations, Plaintiff may file written objections with the court. L.R. 304(b). Such a 28 1 See https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 2 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 3 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: July 15, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28