Wentworth v. Kijakazi ( 2021 )

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT Sarah W., Plaintiff, Civil No. 3:21-cv-01726-SRU v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant. December 29, 2021 ORDER RE: MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS The plaintiff, Sarah W.,1 has moved for leave to proceed in forma pauperis – in other words, she has asked the Court for permission to start a civil case without paying the customary filing fee. A federal law permits her to do so if, among other things, she submits an affidavit listing her assets and showing that she is unable to pay the fee. See 28 U.S.C. § 1915(a)(1). To qualify for in forma pauperis status, the plaintiff does not have to demonstrate absolute destitution, see Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam), but she does need to show that “paying such fees would constitute a serious hardship.” Fiebelkorn v. U.S., 77 Fed. Cl. 59, 62 (2007). Put differently, a “sufficient” in forma pauperis application is one that demonstrates that the plaintiff “cannot because of his poverty pay or give security for the costs and still be able to provide himself and his dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 1 Pursuant to Chief Judge Underhill’s January 8, 2021 Standing Order, the Plaintiff will be referred to solely by first name and last initial. See Standing Order Re: Social Security Cases, No. CTAO-21-01 (D. Conn. Jan. 8, 2021). In determining whether a plaintiff's financial circumstances meet this standard, courts consider not only his or her personal resources, but family resources as well. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse, parent, adult sibling or other next friend.”) (internal quotation marks and citations omitted); Monti v. McKeon, 600 F. Supp. 112, 114 (D. Conn. 1984), aff'd, 788 F.2d 1 (2d Cir. 1985) (table decision). In particular, “[w]here a litigant is supported or assisted by another person, the Court may consider that person’s ability to pay the filing fee.” Pierre v. City of Rochester, No. 16-CV-6428 CJS, 2018 WL 10072449, at *1 (W.D.N.Y. Dec. 13, 2018). In this case, the plaintiff’s in forma pauperis motion is accompanied by a financial affidavit stating that she is unemployed and has no income other than $600 per month in child tax credit payments – which, she notes, will stop at the end of this year unless Congress and the President act to extend it. (ECF No. 2.) Her affidavit also says, however, that “[m]ost [of her] home expenses (including mortgage) [are] paid by [her] children’s father.” (Id. at 5.) Since her mortgage payment alone is $1,500 per month (id. at 4), this means that her children’s father contributes at least $1,500 per month to her support. She provides no further information about his resources. Because courts consider the resources of persons who provide financial support to in forma pauperis applicants in determining whether to grant the application, and because this plaintiff has not provided any information about her children’s father’s resources, this Court is unable to determine whether she is entitled to proceed without paying the filing fee. The Court therefore orders that, by January 12, 2022, the plaintiff must either (a) pay the filing fee or (b) submit a revised financial affidavit that includes a statement of the resources of any person from whom she draws financial support and his/her ability to pay the fee. She is respectfully advised that, if she neither pays the filing fee nor obtains leave to proceed in forma pauperis, her case may be dismissed. /s/ Thomas O. Farrish Hon. Thomas O. Farrish United States Magistrate Judge