Lee v. Saul

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DAVID PAUL LEE, Case No.: 20-cv-1596-BGS 12 Plaintiff, ORDER DENYING MOTION FOR v. LEAVE TO PROCEED IN FORMA PAUPERIS ANDREW SAUL, Commissioner of Social Security, 15 [ECF No. 2] Defendant.

19 On August 18, 2020, Plaintiff DAVID PAUL LEE filed a Complaint seeking judicial review of a decision by the Commissioner of Social Security denying his application for disability benefits. (ECF No. 1.) Plaintiff has not paid the civil filing fee required to commence this action. Before this Court is a Motion to Proceed In Forma Pauperis (“IFP”) filed by Plaintiff. (ECF No. 2.)

24 All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 26 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 2 [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 security therefor, by a person who submits an affidavit 4 that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

6 28 U.S.C. § 1915(a)(1). The determination of indigency falls within the district court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute’s requirement of indigency.”).

11 A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness, and certainty.’”

14 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 f.3D 938, 940 (9th Cir. 1981). “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessitates of life.” Id. “But, the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586 F. Supp. 848, 850 (D.

21 R.I.) 22 Plaintiff’s application reflects that his and his spouse’s combined monthly expenses, listed jointly on the application, exceed his individual income. However, if his spouse’s income is considered, their combined income exceeds their combined monthly expenses. More significantly here, Plaintiff’s assets reflect that he can pay the court costs and still afford the necessities of life. In addition to owning a home and a vehicle, Plaintiff has sufficient funds in savings to pay the filing fee.

28 /// 1 Accordingly, the Court ORDERS as follows: 2 1. Plaintiff's Motion to Proceed IFP is DENIED.

3 2. Plaintiff is granted 45 days from the date this Order is docketed to pay the 4 filing fee.

5 IT IS SO ORDERED.

6 Dated: September 4, 2020 : 2 p / / on. Bernard G. Skomal 8 United States Magistrate Judge 1]