(SS)Prudente v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA FLORIDALMA V. PRUDENTE, Case No. 1:21-cv-00322-SAB

Plaintiff, ORDER DENYING APPLICATION TO

PROCEED IN FORMA PAUPERIS

v. WITHOUT PREJUDICE AND REQUIRING

PLAINTIFF TO FILE LONG FORM

COMMISSIONER OF SOCIAL SECURITY, APPLICATION

Defendant. (ECF No. 2)

TWENTY DAY DEADLINE Floridalma V. Prudente (“Plaintiff”) filed a complaint in this action seeking review of the final decision of the Commissioner of Social Security denying disability benefits. (ECF No. 1.) Plaintiff did not pay the filing fee in this action and instead filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. However, Plaintiff’s application does not establish that she is entitled to proceed in this action without prepayment of fees. Plaintiff application shows that the family receives $3,805.00 per month which is a yearly income of approximately $45,660.00.

In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 1 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant’s right to due process”). A plaintiff need not be absolutely destitute to proceed in forma pauperis and the application is sufficient if it states that due to her poverty she is unable to pay the costs and still be able to provide herself and her dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Whether to grant or deny an application to proceed without prepayment of fees is an exercise of the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015).

In assessing whether a certain income level meets the poverty threshold under Section 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department of Health and Human Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL

12 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 13 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein).

Plaintiff’s application demonstrates income of 3,805.00 per month which makes Plaintiff’s household income $45,660.00 per year. The 2021 Poverty Guidelines for the 48 contiguous states for a household of six is $35,580.00. 2021 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited March 4, 2021). Based on the information provided in Plaintiff’s application her income is well above the poverty level and it does not appear that she is entitled to proceed without prepayment of fees in this action.

Accordingly, the Court will order Plaintiff to complete and file an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) – AO 239. If Plaintiff is unwilling to complete and submit the long form application, Plaintiff must pay the filing fee in full.

Based upon the foregoing, it is HEREBY ORDERED that:

1. Plaintiff’s application to proceed in forma pauperis is DENIED without prejudice; 2. The Clerk of the Court is directed to forward an Application to Proceed in District

Court Without Prepaying Fees or Costs (Long Form) – AO 239 to Plaintiff;

$402.00 filing fee for this action, or (2) complete and file the enclosed Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) — AO 239; and

4. If Plaintiff fails to comply with this order, this action shall be dismissed for failure to pay the filing fee and failure to comply with a court order.

IT IS SO ORDERED. FA. Se g | Dated: _ March 4, 2021

UNITED STATES MAGISTRATE JUDGE