Davison v. O'Malley

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 ANTONIO MONTEREY D., Case No.: 3:3:24-cv-00051-BGS 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. LEAVE TO PROCEED IN FORMA PAUPERIS WITHOUT PREJUDICE 10 MARTIN O’MALLEY, Commissioner of AND WITH LEAVE TO PAY THE Social Security, 11 FILING FEE Defendant. 12 [ECF 2] 13 14 15 Plaintiff has filed a Complaint seeking judicial review of a decision by the 16 Commissioner of Social Security denying disability benefits. (ECF 1.) He has not paid 17 the civil filing fee required to commence this action, and by this motion, he moves to 18 proceed in forma pauperis (IFP). (ECF 2.) For the following reasons, the motion is 19 DENIED without prejudice and with leave to pay the filing fee. 20 All parties instituting any civil action, suit, or proceeding in a district court of the 21 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 22 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 23 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 24 a plaintiff’s failure to prepay the entire fee only if the Court grants leave to proceed IFP 25 under 28 U.S.C. § 1915(a), which states: 26 [A]ny court of the United States may authorize the 27 commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, 28 1 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 2 such fees or give security therefor. 3 28 U.S.C. § 1915(a)(1). 4 The determination of indigency is in the district court’s discretion. California Men’s 5 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by 506 6 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. 7 DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking 8 IFP status must allege poverty ‘with some particularity, definiteness, and certainty.’” 9 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. 10 McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). “An affidavit in support of an IFP 11 application is sufficient where it alleges that the affiant cannot pay the court costs and still 12 afford the necessitates of life.” Id. In assessing whether a certain income level meets the 13 poverty threshold under § 1915(a)(1), courts look to the federal poverty guidelines 14 developed each year by the Department of Health and Human Services. McMillen v. 15 Comm’r of Soc. Sec., No. 22-cv-00925-SAB, 2022 WL 4099069, * 1 (E.D. Cal. Aug. 5, 16 2022). 17 Plaintiff’s IFP application indicates that his gross monthly income is $2,083.33, or 18 $24,999.96 annually. (ECF 2 at 1.) Plaintiff’s annual household gross income of 19 $24,999.96 is significantly higher than the 2024 federal poverty guideline income for a 20 household of one person, which is $15,060. See 2024 Poverty Guidelines, 21 https://aspe.hhs.gov/poverty-guidelines (last visited March 8, 2024). Plaintiff’s average 22 monthly expenses include rent, food, laundry and dry cleaning, transportation, and court 23 fees, and total $1,500. (ECF 2 at 4-5.) Therefore, Plaintiff has approximately $500 of 24 monthly discretionary income. Given that Plaintiff’s annual income significantly exceeds 25 the federal poverty level guidelines, and that Plaintiff has $500 of monthly discretionary 26 income, the Court finds that Plaintiff fails to allege poverty with “particularity, 27 definiteness, and certainty.” See Escobedo, 787 F.3d at 1234; see Maya v. Kijakazi, No.: 28 1 23CV2108-BLM, 2023 WL 8458785, at *2 (S.D. Cal. Nov. 22, 2023) (denying the 2 || plaintiff's motion to proceed IFP when the plaintiffs annual household gross income was 3 || $32,739.60, significantly higher than the federal poverty guideline income of $19,720, his 4 ||monthly expenses were $542.30 less than his monthly income, and he had land worth 5 $30,000 and a car worth $5,000); Campos v. Saul, No. 1:19-cv-00248-REB, 2019 WL 6 || 13251985, *1 (D. Idaho July 11, 2019) (denying the plaintiff's motion to proceed IFP when 7 plaintiff's annual household gross income was $32,880 and the federal poverty 8 || guideline income was $25,750); Johnson v. Leokane, No. 08-00432 ACK-KSC, 2008 WL 9 4527065, at *3 n.2 (D. Haw. Oct. 9, 2008) (denying the plaintiff's motion to proceed IFP 10 || when the plaintiff's annual household gross income was $14,124, $2,164 more than the 11 federal poverty guideline income that year). 12 Accordingly, Plaintiff's motion is DENIED without prejudice and with leave to pay 13 || the filing fee. 14 IT IS SO ORDERED. 16 ||Dated: March 11, 2024 on. Bernard G. Skomal 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28