Scher v. Kijakazi ( 2020 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 THERESA ULUWEHI SCHER, Case No.: 20-CV-1665 W (RBM) 14 Plaintiff, ORDER GRANTING MOTION TO 15 v. PROCEED IFP [DOC. 2] AND REFERRING FOR REPORT AND 16 ANDREW SAUL, Commissioner of RECOMMENDATION Social Security, 17 Defendant. 18 19 20 On August 26, 2020, Plaintiff Theresa Uluwehi Scher (“Plaintiff”) filed a 21 complaint seeking review of the denial of her claim for social security disability 22 insurance and supplemental security income benefits under the Social Security Act. 23 Along with the complaint, Plaintiff filed a motion to proceed in forma pauperis (“IFP”) 24 (the “Motion” [Doc. 2]). 25 26 I. INTRODUCTION 27 The determination of indigency falls within the district court’s discretion. 28 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on 1 other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court 2 to exercise its sound discretion in determining whether the affiant has satisfied the 3 statute’s requirement of indigency.”). 4 It is well-settled that a party need not be completely destitute to proceed in forma 5 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To 6 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 7 which states that one cannot because of his poverty pay or give security for costs ... and 8 still be able to provide himself and dependents with the necessities of life.” Id. at 339. 9 At the same time, however, “the same even-handed care must be employed to assure that 10 federal funds are not squandered to underwrite, at public expense, ... the remonstrances of 11 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 12 v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). 13 District courts, therefore, tend to reject IFP applications where the applicant can 14 pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 15 Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares 16 v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not abuse 17 discretion in requiring partial fee payment from prisoner with $14.61 monthly salary and 18 $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) 19 (Plaintiff initially permitted to proceed in forma pauperis, later required to pay $120 20 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 21 1982) (in forma pauperis application denied: “plaintiff possessed savings of $450 and the 22 magistrate correctly determined that this amount was more than sufficient to allow the 23 plaintiff to pay the filing fee in this action.”). Moreover, the facts as to the affiant’s 24 poverty must be stated “with some particularity, definiteness, and certainty.” United 25 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 26 Having read and considered the papers submitted, the Court finds that based on the 27 current record, Plaintiff meets the requirements for IFP status under 28 U.S.C. § 1915. 28 According to her declaration, Plaintiff has three children and is going through a divorce. 1 || Motion J 7, 9, 11.) She currently is not receiving child support or alimony and has no 2 ||other monthly income. (/d. Jf 1,9.) Her checking and savings accounts total $212 and 3 ||her only asset is a 2013 automobile that she estimates is worth $4,000. Ud. §§ 4, 5). 4 || Meanwhile, Plaintiff's monthly expenses total approximately $3,555. Ud. 4] 8.) Based on 5 || these facts, the Court will grant Plaintiff's IFP motion. 6 7 |\|II. CONCLUSION & ORDER 8 For the reasons addressed above, the Court GRANTS Plaintiff's IFP motion [Doc. 9 ||2] and ORDERS as follows: 10 1. The United States Marshal shall serve a copy of the Complaint filed on 11 August 26, 2020 and an accompanying summons upon Defendant as 12 directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be 13 advanced by the United States. 14 2. Defendant shall respond to the Complaint within the time provided by the 15 applicable provisions of the Federal Rules of Civil Procedure. 16 The Court also hereby REFERS all matters arising in this case to United States 17 || Magistrate Judge Ruth Bermudez Montenegro for a Report & Recommendation in 18 || accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1)(c ). If the parties 19 || seek to file motions, they shall contact the chambers of Judge Montenegro to secure 20 scheduling, filing, and hearing dates. 21 IT IS SO ORDERED. 22 ||Dated: September 22, 2020 \ 23 pe lnLor 24 Hn. 7 omas J. Whelan 5 Unted States District Judge 26 27 28