1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN DAVID MARTIN, Case No.: 20-CV-2366 JLS (AGS)

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION

14 MARLON D. MITCHELL, CHRISTINA PURTEE, MARGARITA SERRANO, (ECF No. 6) 15 and DOES 1-50 16 Defendants. 17 18 19 Presently before the Court is Plaintiff John David Martin’s Motion for 20 Reconsideration (“Mot.,” ECF No. 6). Plaintiff requests the Court reconsider its January 21 7, 2021 order denying Plaintiff’s motion to proceed in Forma Pauperis (“IFP”). (“Order,” 22 ECF No. 4.) After considering Plaintiff’s arguments and the law, the Court DENIES 23 Plaintiff’s Motion. 24 On December 3, 2020, Plaintiff filed a motion for leave to proceed IFP alongside his 25 Complaint alleging various Constitutional rights and fair credit reporting violations against 26 employees of the San Diego County Department of Child Support Services (ECF Nos. 1, 27 2). The Court denied Plaintiff’s motion to proceed IFP on January 7, 2021, finding that 28 “Plaintiff has not shown he cannot pay the court costs and still afford the necessities of 1 life.” Order at 3. The Court based its ruling on the “amount of money Plaintiff indicates 2 he expects to continue to receive on a monthly basis,” which “exceeds his monthly debts 3 and obligations by more than $300.” Id. at 2. The Court granted Plaintiff leave to pay the 4 filing fee. Id. at 3. Plaintiff filed the present Motion on January 15, 2021, arguing that the 5 Court “failed to take into account . . . relevant factors intended to guide its discretion.” 6 Mot. at 3. 7 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 8 amend its judgment. In the Southern District of California, a party may apply for 9 reconsideration “[w]henever any motion or any application or petition for any order or 10 other relief has been made to any judge and has been refused in whole or in part.” Civ. 11 L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, new or 12 different facts and circumstances which previously did not exist. Id. 13 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 14 discovered evidence, committed clear error, or if there is an intervening change in the 15 controlling law.’” Wood v. Ryan,

(9th Cir. 2014) (internal quotation 16 marks omitted) (quoting McDowell v. Calderon,

(9th Cir. 1999) (en 17 banc)) (emphasis in original). Reconsideration is an “extraordinary remedy, to be used 18 sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., 19 Inc. v. Estate of Bishop,

, 890 (9th Cir. 2000). Ultimately, whether to grant 20 or deny a motion for reconsideration is in the “sound discretion” of the district court. 21 Navajo Nation v. Norris,

(9th Cir. 2003) (citing Kona Enters., 229 22 F.3d at 883). A party may not raise new arguments or present new evidence if it could 23 have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. 24 Partners v. Arnold,

(9th Cir. 1999)). 25 Plaintiff argues that the Court (1) “incorrectly counted the Plaintiffs Veterans 26 Disability Compensation as ‘income’”; and (2) “cites a potential [Social Security Disability 27 Insurance (“]SSDI[“] disability award in the unknown future as a qualifying reason of 28 denial.” Mot. at 3–4. Plaintiff does not argue that there is newly discovered evidence or 1 that there has been an intervening change in the controlling law. Therefore, the Court will 2 examine its ruling for clear error and address Plaintiff’s arguments in turn. 3 First, Plaintiff cites to

as the basis for his argument that his VA 4 disability compensation should not be considered as monthly “income” in his IFP 5 application. Mot. at 3. Plaintiff argues that VA disability compensation “is not income by 6 any definition.”

Section 5301 exempts disability benefits from taxation and provides 7 that disability benefits are generally nonassignable. See Wright v. Riveland,

, 8 920 (9th Cir. 2000) (“[Section 5301] makes payments of benefits ‘made to, or on account 9 of, a beneficiary . . . exempt from the claim of creditors,’ and provides that these benefits 10 are not ‘liable to attachment . . . either before or after receipt by the beneficiary.’” (quoting 11

(a))). Plaintiff argues that “the court incorrectly assumes the jurisdiction 12 and authority to attach Plaintiff member’s VA disability compensation in a legal process.” 13 Mot. at 3. The Court does not seek to attach Plaintiff’s disability compensation. The Court 14 granted Plaintiff leave to pay the statutory and administrative filing fee if he chooses to 15 proceed with this case. Order at 3. 16 The Court included Plaintiff’s VA disability compensation in its evaluation of 17 Plaintiff’s monthly income to assess his eligibility to proceed IFP. Other courts frequently 18 classify VA disability compensation as monthly income in these circumstances. See, e.g., 19 Lint v. City of Boise, No. CV09-72-S-EJL,

, at *2 (D. Idaho Apr. 28, 20 2009) (considering sum of “VA disability compensation” and “Social Security Disability” 21 payments to arrive at a “total monthly income” figure). VA disability compensation also 22 is treated as income for other purposes. See, e.g., Hassel v. Astrue, No. 17-CV-05811- 23 MEJ,

, at *4 (N.D. Cal. June 28, 2018) (finding ALJ correctly treated 24 the plaintiff’s VA disability compensation as income for purpose of determining SSI 25 eligibility or benefits); Francis H. v. Saul, No. SACV 18-1854-KK,

, at 26 *2 (C.D. Cal. Feb. 3, 2020) (finding “[s]ubstantial evidence” supports ALJ’s conclusion 27 that the plaintiff’s VA compensation qualifies as income). 28 /// 1 Second, Plaintiff argues that “[t]he court cites a potential SSDI disability award in 2 ||the unknown future as a qualifying reason of denial... .” Mot. at 4. The Court did not 3 || base its ruling on the possibility that Plaintiff may receive SSDI in the future; the Court 4 || was recounting information Plaintiff included in his application. The Court stated it based 5 ruling on “[t]he amount of money Plaintiff indicates he expects to continue to receive 6 a monthly basis... ,” Order at 2, which was the sum of his VA disability compensation. 7 || The possibility of a future SSDI award did not weigh in the Court’s decision to deny 8 || Plaintiff's application. 9 Therefore, the Court finds it did not commit clear error by considering Plaintiffs 10 || VA disability compensation as monthly income, and the possibility of a future SSDI award 11 || did not factor into the Court’s evaluation of Plaintiffs eligibility to proceed IFP. 12 Accordingly, the Court DENIES Plaintiffs Motion for Reconsideration (ECF No. 13 ||6). In its previous Order, the Court granted Plaintiff thirty days to pay the filing fee. See 14 |/Order at 3. Given that Plaintiff filed the present Motion for Reconsideration, the Court 15 ||GRANTS Plaintiff an additional thirty (30) days from the date on which this Order 16 |/is electronically docketed in which to reopen his case by paying the entire $402 statutory 17 || and administrative filing fee. If Plaintiff fails to pay the $402 filing fee in full, this action 18 |} will remain dismissed without prejudice pursuant to

(a), and without 19 further Order of the Court. 20 IT IS SO ORDERED. 21 ||Dated: February 2, 2021 . tt f te 22 on. Janis L. Sammartino 3 United States District Judge 24 25 26 27 28