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denying the plaintiff's IFP motion where she had "a net-positive monthly household source of money of approximately $170.00" and the filing fee was $400.00
Summary of this case from Upton v. Comm'r of Soc. Sec. Admin.Opinion
CASE NO: 15-CV-1342 W (MDD)
08-04-2015
DEBORAH LYNN RIEGEL, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration Defendant.
ORDER:
(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS [DOC. 2]; AND
(2) DISMISSING COMPLAINT WITHOUT PREJUDICE
On June 18, 2015, Plaintiff Deborah Lynn Riegel ("Plaintiff") commenced this action against Carolyn W. Colvin, Acting Commissioner of Social Security, for judicial review of a final administrative decision denying disability benefits. (See Compl. [Doc. 1].) Along with the Complaint, Plaintiff also filed a motion to proceed in forma pauperis ("IFP"). (See IFP Mot. [Doc. 2].) For the reasons outlined below, the Court DENIES Plaintiff's IFP motion and DISMISSES Plaintiff's Complaint WITHOUT PREJUDICE.
The determination of indigency falls within the district court's discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 194 (1993) ("[28 U.S.C. §] 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency."). It is well settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948); see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) ("[T]he filing fee, while discretionary, should not take the prisoner's last dollar."). Rather, to satisfy the requirements of 28 U.S.C. § 1915(a), an affidavit need only state that one cannot "because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life." Adkins, 335 U.S. at 339 (internal quotation marks omitted). At the same time, however, the court must "assure that federal funds are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
District courts therefore tend to reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares, 59 F.3d at 112 (district court did not abuse discretion in requiring partial fee payment from prisoner who consistently spent $35 a month on "comforts" such as candy and name brand toiletries from the prison commissary); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because "plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action"). Moreover, "in forma pauperis status may be acquired and lost during the course of litigation." Wilson v. Dir. of Div. of Adult Insts., 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citation omitted); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma pauperis should be required to pay his $120 filing fee out of a $900 settlement). Furthermore, the facts as to the affiant's poverty must be stated "with some particularity, definiteness, and certainty." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
Having read and considered Plaintiff's application, the Court finds that Plaintiff fails to meet the requirements set out in 28 U.S.C. § 1915 for IFP status. Plaintiff is currently employed; her take-home wages amount to $575 each month. (IFP Mot. ¶ 2.) She also lists her husband's disability income, which amounts to $1,300 per month. (Id. ¶ 3.) Plaintiff does not have a checking or savings account, nor does she own any real estate, stocks, bonds, or securities. (Id. ¶¶ 4-5, 7.) Plaintiff and her husband do, however, own two vehicles: a 2004 Toyota Matrix and a 2005 Ford Focus. (Id. ¶ 6.) The current value of the vehicles is not stated in Plaintiff's motion, but it appears that Plaintiff and her husband own the vehicles outright. (See id.) Plaintiff does not list any dependents. (Id. ¶ 6-8.) Furthermore, with regard to expenses, Plaintiff's motion lists monthly expenses totaling $1,705. Specifically, Plaintiff states that she allocates her household income toward the following expenses and in the following amounts: $830 for rent; $180 for utilities; $70 for car insurance; $200 for car maintenance and fuel; $400 for groceries; and $25 for laundry.
Based on the details given by Plaintiff, she has a net-positive monthly household source of money of approximately $170. In addition, the details provided in Plaintiff's motion indicate that Plaintiff's monthly household income places her above the 2015 poverty threshold. Therefore, as it stands, the Court cannot conclude that paying the court filing fees would impair Plaintiff's ability to obtain the necessities of life. See Adkins, 335 U.S. at 339. Furthermore, Plaintiff and her husband also appear to own two vehicles. In the absence of more detailed information regarding the value of the vehicles, the Court cannot conclude that Plaintiff, because of her poverty, is unable to give security for the cost of filing her Complaint and still be able to provide herself and her husband with the necessities of life. See id.; see also Azzun v. Kan. Dep't of Health and Env't, 2009 WL 5171778 (D. Kans. Dec. 22, 2009) (citing cases for the dual propositions that "[a] court may consider [an] applicant's assets, not merely his or her income, in determining the applicant's ability to pay the filing fee," and that "[f]ederal courts have historically looked to assets, such as equity in real estate, in determining eligibility to proceed in forma pauperis").
According to the figures supplied by Plaintiff, her annual household income amounts to $22,500. According to the poverty guidelines promulgated by the United States Department of Health and Human Services, the poverty threshold for two-person households in the forty-eight contiguous states is $15,930. See United States Department of Health and Human Services, 2015 Poverty Guidelines, http://aspe.hhs.gov/poverty/15poverty.cfm (last visited August 3, 2015). --------
In light of the foregoing, the Court DENIES Plaintiff's motion to proceed IFP (Doc. 2), and DISMISSES the Complaint WITHOUT PREJUDICE . Pursuant to this order, Plaintiff is granted 30 days' leave to pay the filing fee required to maintain this action pursuant to 28 U.S.C. § 1914, or to submit additional documentation regarding her financial status. IF PLAINTIFF CHOOSES TO FILE ADDITIONAL INFORMATION REGARDING HER POVERTY, SHE MUST ATTACH A COPY OF THIS ORDER. Additionally, Plaintiff is reminded that an IFP application is made under penalty of perjury, and any false statements may result in dismissal of her claims, imprisonment of not more than five years, or a fine. See 18 U.S.C. §§ 1621, 3571.
IT IS SO ORDERED. DATED: August 4, 2015
/s/_________
Hon. Thomas J. Whelan
United States District Judge