Martin v. Kijakazi ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD M., Case No.: 20-cv-01736-JLB 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 ANDREW SAUL, Acting Commissioner of Social Security, 15 Defendant. 16 [ECF No. 2] 17 18 Plaintiff Donald M. has filed a Complaint against the Commissioner of Social 19 Security, Andrew Saul, seeking judicial review of the Commissioner’s final decision 20 denying his application for disability insurance benefits. (ECF No. 1 ¶ 6.) The parties 21 have consented to the disposition of the case by Magistrate Judge Jill L. Burkhardt pursuant 22 to 28 U.S.C. § 636(c). (ECF No. 5.) 23 Presently before the Court is Plaintiff’s Motion for Leave to Proceed In Forma 24 Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons set forth below, Plaintiff’s IFP 25 Motion is DENIED without prejudice. 26 I. LEGAL STANDARD 27 All parties instituting a civil action, suit, or proceeding in a district court of the 28 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 1 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 2 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 3 § 1915(a)(1). Section 1915(a)(1) provides that: 4 any court of the United States may authorize the commencement, prosecution 5 or defense of any suit, action or proceeding . . . without prepayment of fees or 6 security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 7 such fees or give security therefor. 8 9 As Section 1915(a)(1) does not itself define what constitutes insufficient assets, the 10 determination of indigency falls within the district court’s discretion. See Cal. Men’s 11 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically requires 12 the reviewing court to exercise its sound discretion in determining whether the affiant has 13 satisfied the statute’s requirement of indigency.”), reversed on other grounds by 506 U.S. 14 194 (1993). “An affidavit in support of an IFP application is sufficient where it alleges 15 that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo 16 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de 17 Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to obtain 18 benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) 19 “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 20 definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 21 II. DISCUSSION 22 Here, Plaintiff has not paid the $400.001 filing fee required to maintain an action in 23 this District and has instead moved to proceed IFP. (ECF No. 2.) In his affidavit of assets, 24 25 26 1 See 28 U.S.C. § 1914(a) (“The clerk of each district shall require the parties 27 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $350, except that on application for writ of habeas corpus the filing fee shall be $5.); CASD Fee 28 1 Plaintiff attests under penalty of perjury that he owns a house valued at $300,000.00 and a 2 2006 PT Cruiser valued at $1,000.00. (Id. ¶ 5.) He also attests that he has been unemployed 3 for at least the last two years but receives $3,270.00 per month in Veteran Disability 4 payments. (Id. ¶¶ 1–2.) Plaintiff’s total monthly expenses average $3,148.00 for: mortgage 5 payments ($1,503.00); utilities ($62.00); HOA fees ($290.00); food ($300.00); 6 transportation ($80.00); home insurance ($44.00); medication ($32.00); vehicle insurance 7 ($114.00); installment payments on a vehicle ($420.00), on a credit card ($100.00), to 8 Home Depot ($100.00), and to MetroPCS ($65.00); and home security ($38.00). (Id. ¶ 8.) 9 Therefore, on average, Plaintiff’s monthly income exceeds his monthly expenses by 10 $122.00. Plaintiff attests that he has $0.00 in cash and $0.00 in a bank account or any other 11 financial institution. (Id. ¶ 4.) Plaintiff has no dependents. (Id. ¶ 7.) 12 The Court finds that Plaintiff’s affidavit of assets does not sufficiently demonstrate 13 that he lacks the financial resources to pay the $400.00 filing fee, for Plaintiff fails to allege 14 his indigency with some “particularity, definiteness, and certainty.” Escobedo, 787 F.3d 15 at 1234. Plaintiff’s monthly expenses average $122.00 less than his monthly income, yet 16 Plaintiff attests that he has $0.00 in cash and $0.00 in a bank account or any other financial 17 institution. (ECF No. 2 ¶¶ 1, 8.) Plaintiff’s net positive monthly income seems to indicate 18 that he should have some savings and could possibly afford the filing fee. 19 Additionally, Plaintiff owns a PT Cruiser valued at only $1,000.00, but he attests 20 that he pays $420.00 per month in vehicle installment payments. (Id. ¶¶ 5, 8.) Plaintiff 21 further attests that he has made and will continue to make these payments for at least a 22 year, for under Paragraph 9 in his affidavit, Plaintiff marked “No” as to whether he expects 23 any major changes to his monthly income, expenses, assets, or liabilities “during the next 24 12 months.” (Id. ¶ 9.) It is not readily apparent to the Court why Plaintiff’s monthly vehicle 25 payments are nearly half his vehicle’s total value. Without further explanation, the Court 26 27 DULE%20Eff%2010-01-2019.pdf (effective Oct. 10, 2019) (imposing a $50 28 1 |}cannot deduce whether, perhaps, Plaintiffs answer under Paragraph 9 was made in error, 2 || and Plaintiff will finish making his $420.00 monthly payments within the next few months, 3 || or Plaintiff is making installment payments on second, higher-valued vehicle that he did 4 || not disclose as an asset. 5 These discrepancies in Plaintiff's affidavit leave the Court unable to find with 6 ||certainty that Plaintiff is indigent and that paying the $400.00 filing fee would cause him 7 |}undue financial hardship or to “sacrifice the necessities of life.” Escobedo, 787 F.3d at 8 || 1234. The Court further notes that Plaintiff failed to provide whether his monthly mortgage 9 || payments include real estate taxes or property insurance, as requested by the affidavit, and 10 |/that Paragraphs 11 through 13 of the affidavit are incomplete. 11 Ht. CONCLUSION 12 For the foregoing reasons, the Court DENIES without prejudice Plaintiff's IFP 13 ||Motion. (ECF No. 2.) No later than November 18, 2020, Plaintiff must either pay the 14 || $400.00 filing fee or file a renewed IFP motion that sufficiently shows he is entitled to IFP 15 |/status. If Plaintiff fails to do either by the stated deadline, the Court will dismiss the 16 Complaint and close the case. 17 IT IS SO ORDERED. . 18 || Dated: October 28, 2020 Balladt n. Jill L. Burkhardt 19 ited States Magistrate Judge 20 21 22 23 24 25 26 27 28