Walker III v. O' Malley

[4] 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA [7] Case No.: 24CV976-BLM 8 CHARLES WALKER III, 9 Plaintiff, ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN 10 v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS 11 MARTIN O' MALLEY, COMMISSIONER OF SOCIAL SECURITY, 12 [ECF NO. 2] Defendant. [14] 15 The instant matter was initiated on June 3, 2024 when Plaintiff filed a complaint seeking 16 review of the Commissioner’s decision to deny Plaintiff’s application for Title II Social Security 17 Disability Insurance benefits for lack of disability. ECF No. 1 at 1. That same day, Plaintiff filed 18 an Application To Proceed In District Court Without Prepaying Fees or Costs. ECF No. 19 2. Plaintiff has not established that he is unable to pay the $405 filing fee without impairing 20 his ability to pay for life’s necessities. Accordingly, Plaintiff’s Application to Proceed in District 21 Court without Prepaying Fees or Costs is DENIED. 22 Application to Proceed in District Court without Prepaying Fees or Costs 23 All parties instituting any civil action, suit, or proceeding in a district court of the United 24 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. 25 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if 26 she is granted leave to proceed pursuant to 28 U.S.C. § 1915 (a), which states: 27 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding ... without prepayment of fees or 1 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 such fees or 2 give security therefor. 3 The determination of indigency falls within the district court's discretion. California Men's 4 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 5 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 6 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 7 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 8 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 9 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 10 poverty pay or give security for costs ... and still be able to provide for himself and dependents 11 with the necessities of life.” Id. at 339 . At the same time, “the same even-handed care must 12 be employed to assure that federal funds are not squandered to underwrite, at public expense, 13 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 14 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 15 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 16 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860 , at *2 (N.D. Cal. 1995) (Plaintiff 17 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 18 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 19 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the $60 filing 20 fee). Moreover, the facts as to the affiant's poverty must be stated “with some particularity, 21 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 22 Plaintiff has not satisfied his burden of demonstrating that he is entitled to IFP status. 23 According to his affidavit in support of application, Plaintiff is not employed but receives $1,350 24 per month in retirement, $266 per month in unemployment payments, and $200 per month in [25] public assistance.1 ECF No. 2 at 1-2. Plaintiff has $300 in cash and $1900 in a checking account. [27] 1 Plaintiff received $400 per month from employment during the past twelve months but does 1 at 2. It does not appear that Plaintiff is married, and he has no dependents who rely on him 2 ||for support. Id. at 2-3. Plaintiff states that he owns a house worth $600,000 and two cars 3 || worth $2,000 and $500 respectively. Id. at 3. Plaintiff soends approximately $1000 per month 4 ||on mortgage and property tax payments, $200 per month on utilities, $300 per month on home 5 ||maintenance, $300 per month on food, $50 per month on clothing, $50 per month on laundry 6 dry cleaning, $100 per month on transportation, $100 per month on car insurance, $125 7 || per month on home insurance, $130 per month on life insurance, $200 per month on credit card 8 || bills, and $100 per month on entertainment. Id. at 4-5. Plaintiff's monthly expenses total $2655. 9 at 5. 10 Although Plaintiff is not employed, he owns a home, owns two vehicles, and has $2,200 11 cash and checking accounts. Id. at 2-3. While Plaintiff states that he is unemployed and has 12 || high credit card debt, he can afford the $405 filing fee. Plaintiff has monthly income and several 13 || of his listed expenses are not “necessities of life” so Plaintiff can minimize or eliminate them for 14 ||a month or two to pay the filing fee. Based upon the foregoing, the Court finds that Plaintiff 15 || has not established that he is unable to pay the $405 filing fee without impairing his ability to 16 || pay for life’s necessities. 17 CONCLUSION 18 Plaintiff's Application to Proceed in District Court without Prepaying Fees or 19 || Costs is DENIED. No later than June 25, 2024, Plaintiff must pay the $405 filing fee. If 20 || Plaintiff fails to do so, the Court will dismiss the Complaint and close the case. 21 IT IS SO ORDERED. [22] 23 Dated: 6/5/2024 lobe Mager 24 Hon. Barbara L. Major United States Maqistrate Judde