(SS) Terrel v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 BRANDON TERREL, Case No. 1:24-cv-00227-SAB 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING DENYING v. PLAINTIFF’S APPLICATION TO 12 PROCEED IN FORMA PAUPERIS AND COMMISSIONER OF SOCIAL SECURITY, REQUIRING PLAINTIFF TO PAY THE 13 FILING FEE Defendant. 14 ORDER DIRECTING CLERK OF THE COURT TO RANDOMLY ASSIGN A 15 DISTRICT JUDGE 16 (ECF No. 4) 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 Plaintiff Brandon Terrel filed a complaint on February 21, 2024, challenging a final 20 decision of the Commissioner of Social Security denying an application for disability benefits. 21 (ECF No. 1.) Plaintiff did not pay the filing fee in this action and instead filed an application to 22 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Based on the initial 23 application, the Court found it could not determine from the information provided if Plaintiff is 24 entitled to proceed in this action without prepayment of fees. On February 23, 2024, the Court 25 denied the application without prejudice and ordered Plaintiff to file a long form application. 26 (ECF No. 3.) On February 26, 2024, Plaintiff filed a long form application. (ECF No. 4.) For 27 the reasons discussed herein, the Court shall recommend Plaintiff’s application to proceed IFP be denied. 1 In order to proceed in court without prepayment of the filing fee, a plaintiff must submit 2 an affidavit demonstrating they are “unable to pay such fees or give security therefor.” 28 3 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a 4 privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 5 506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 6 (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of 7 in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need 8 not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it 9 states that due to his poverty he is unable to pay the costs and still be able to provide himself and 10 his dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 11 331, 339 (1948). In assessing whether a certain income level meets the poverty threshold under 12 Section 1915(a)(1), courts look to the federal poverty guidelines developed each year by the 13 Department of Health and Human Services. See, e.g., Boulas v. U.S. Postal Serv., No. 1:18-cv- 14 01163-LJO-BAM, 2018 WL 6615075, at *1 n.1 (E.D. Cal. Nov. 1, 2018) (applying federal 15 poverty guidelines to deny IFP application); Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 16 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 17 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). Whether to grant or deny an 18 application to proceed without prepayment of fees is an exercise of the district court’s discretion. 19 Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 20 In his long form application, Plaintiff proffers that the average monthly income of his 21 household over the past twelve months totals $3,480.00 from the following sources: (1) 22 $3,200.00 from his spouse’s employment, and (2) $280.00 from food stamps.1 (ECF No. 4 at 1- 23 2.) Plaintiff proffers he does not expect changes to his household monthly income over the next 24 12 months. (Id. at 5.) 25 Plaintiff’s household includes his spouse and one dependent. (Id. at 3.) Plaintiff claims 26 expenses in the amount of: (1) $1,100.00 for home-mortgage payment with property insurance 27 1 The long form application directs applicants to use gross monthly income. (ECF No. 4 at 1-2.) The Court therefore calculates Plaintiff’s household month income using the gross amount rather than the net amount also 1 included; (2) $300.00 for utilities; (3) $100.00 for food; (4) $100.00 for laundry and dry- 2 cleaning; (5) $120.00 for life insurance; (6) $160.00 for auto insurance; and (7) $200.00 for a 3 credit card. (Id. at 4.) This totals $2,080.00 per month in claimed expenses. 4 Plaintiff also claims the following assets: (1) a home proffered to be valued at 5 $118,000.00; (2) a 2014 Nissan vehicle proffered to be valued at $3,000.00; (3) a 2015 Nissan 6 vehicle proffered to be valued at $3,000.00; and (4) a 2000 GMC vehicle proffered to be valued 7 at $1,200.00. (Id. at 3.) Plaintiff also claims to currently have $80.00 cash in a checking 8 account. (Id. at 2.) 9 The Court finds the information contained in Plaintiff’s application is inconsistent with a 10 finding of poverty based on such income, stated expenses, and stated assets. Plaintiff’s annual 11 household income is $41,760.00, which exceeds the poverty guideline for a three-person 12 household ($25,820). 2024 Poverty Guidelines, https://aspe.hhs.gov/topics/poverty-economic- 13 mobility/poverty-guidelines (last visited February 27, 2024). Further, while recognizing Plaintiff 14 makes monthly payments on his mortgage, Plaintiff’s claimed savings, cash, and assets exceed 15 $125,000.00. Plaintiff’s income and assets therefore reflect that Plaintiff can pay the $405.00 16 filing fee for this action. 17 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s application to proceed 18 in forma pauperis be DENIED and Plaintiff be ordered to pay the $405.00 filing fee for this 19 action. 20 IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to randomly 21 assign this matter to a District Judge. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 These findings and recommendations are submitted to the District Judge to be assigned to 2 | this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within 3 | fourteen (14) days of service of this recommendation, Plaintiff may file written objections to 4 findings and recommendations with the court. Such a document should be captioned 5 | “Objections to Magistrate Judge’s Findings and Recommendations.” The District Judge will 6 | review the Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 7 | 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 8 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 9 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. DAM Le 12 | Dated: _February 27, 2024 _ Oe UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28