Robinson v. Saul ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RENEE R., Case No.: 21cv775-W-MDD 11 Plaintiff, REPORT AND 12 v. RECOMMENDATION ON PLAINTIFF'S MOTION TO 13 ANDREW SAUL, Commissioner of PROCEED IN FORMA PAUPERIS Social Security, 14 Defendant. 15 [ECF No. 2] 16 This Report and Recommendation is submitted to United States 17 District Judge Thomas J. Whelan pursuant to 28 U.S.C. § 636(b)(1) and Local 18 Civil Rule 72.1(c) of the United States District Court for the Southern 19 District of California. On April 20, 2021, Renee R. (“Plaintiff”) filed this 20 social security appeal pursuant to Section 205(g) of the Social Security Act, 21 42 U.S.C. § 405(g), challenging the denial of Plaintiff’s application for Social 22 Security Disability benefits. (ECF No. 1). Plaintiff simultaneously filed a 23 motion to proceed in forma pauperis (“IFP”). (ECF No. 2). For the reasons 24 set forth herein, the Court RECOMMENDS Plaintiff’s motion to proceed IFP 25 be DENIED. 26 All parties instituting any civil action, suit, or proceeding in a district 1 court of the United States, except an application for writ of habeas corpus, 2 must pay a filing fee of $400.1 See U.S.C. § 1914(a). An action may proceed 3 despite plaintiff’s failure to prepay the entire fee only if he is granted leave to 4 proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 5 1176, 1177 (9th Cir. 1999). “To proceed [IFP] is a privilege not a right.” 6 Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A party need not be 7 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & 8 Co., 335 U.S. 331, 339-40 (1948). But “the same even-handed care must be 9 employed to assure that federal funds are not squandered to underwrite, at 10 public expense, either frivolous claims or remonstrances of a suitor who is 11 financially able, in whole or in part, to pull his own oar.” Temple v. 12 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 13 After reviewing Plaintiff’s application to proceed IFP, the Court finds 14 that Plaintiff has not made an adequate showing that Plaintiff lacks the 15 financial resources or assets to pay the costs of commencing this action. 16 Plaintiff receives $859.00 a month in retirement benefits and has $1,0025.00 17 in a savings and checking account combined. (ECF No. 2 at 2). Plaintiff 18 owns a 1998 Buick, although Plaintiff did not provide a valuation of the 19 vehicle. (Id. at 3). Plaintiff reports monthly expenses in the amount of 20 $361.00. (Id. at 5). As such, Plaintiff’s monthly income exceeds Plaintiff’s 21 monthly expenses by $498.00. (See id.). Accordingly, the Court cannot 22 conclude that paying the court filing fees would impair Plaintiff’s ability to 23 obtain the necessities of life. See Adkins, 335 U.S. at 339; see also Rashaad v. 24 25 1 In addition to the $350.00 statutory fee, civil litigants must pay an additional 26 administrative fee of $50.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50.00 1 ||Saul, No. 19cev1126-MMA (MDD), 2019 U.S. Dist. LEXIS 114891, at *2-3 9 ||(S.D. Cal. July 10, 2019) (denying the plaintiffs IFP motion where his 3 || monthly income exceeded his expenses by $391.50 and the filing fee was 4 || $400.00). 5 Based on the foregoing, the Court RECOMMENDS Plaintiff's motion 6 ||to proceed IFP be DENIED. 7 IT IS HEREBY ORDERED that any written objections to this Report 8 must be filed with the Court and served on all parties no later than May 27, 9 || 2021. The document should be captioned “Objections to Report and 10 || Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objection shall be 12 || filed with the Court and served on all parties no later than June 4, 2021. 13 || The parties are advised that the failure to file objections within the specified 14 time may waive the right to raise those objections on appeal of the Court’s 15 ||order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 16 IT IS SO ORDERED. Dated: May 138, 2021 Mitel bs. [ Hon. Mitchell D. Dembin 19 United States Magistrate Judge 20 21 22 23 24 25 26 27