Adelmeyer v. Kijakazi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

JANET A. , Case No.: 21-cv-00227-DEB Plaintiff,

ORDER DENYING APPLICATION v. TO PROCEED IN FORMA

PAUPERIS

ANDREW M. SAUL, Commissioner of

Social Security, [DKT. NO. 2]

Defendant.

Before the Court is Plaintiff Janet A.’s Application to Proceed in forma pauperis.

Dkt. No. 2. For the reasons set forth below, the Court DENIES the Application.

All parties instituting a civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a $400 filing fee.

See 28 U.S.C. § 1914(a). The Court may authorize the commencement of a suit without prepayment of fees if the plaintiff submits an affidavit, including a statement of assets, showing he or she is unable to pay the filing fee. See 28 U.S.C. § 1915(a). The affidavit must “state the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal quotations omitted). A party need not be completely destitute to proceed in forma pauperis.

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). An affidavit is sufficient if it shows the applicant cannot pay the fee “and still be able to provide himself [or herself] and dependents with the necessities of life.” Id. (internal quotations omitted). Here, Plaintiff’s Application states that she and her spouse receive a combined monthly income of $4,325 from real property, gifts, retirement, and self-employment. Dkt. No. 2 at 1–2. Plaintiff reports that she is unemployed. Id. at 2. Plaintiff claims her and her spouse’s monthly expenses exceed their income by $2,250. Dkt. No. 2 at 5 (stating combined monthly expenses are $6,575 including rent or home-mortgage payment, health insurance, utilities, food, recreation, credit card payments, and $3,500 in “Business payroll”).1 However, Plaintiff lists significant assets, with a combined value of $857,500. She also reports a checking/savings account with a balance of $10,000 and a business checking account with an additional balance of $10,000. Id. at 2. Plaintiff also states she and her husband have $800 in cash at hand. Id.

Based on the foregoing, the Court DENIES Plaintiff’s Application to proceed in forma pauperis. See Boudreaux v. Saul, No. 20-cv-274-BGS, 2020 U.S. Dist. LEXIS 15 64283, at *2 (S.D. Cal. Apr. 10, 2020) (“Although the application reflects Plaintiff is spending more that he is receiving in income monthly, the Court would be hard pressed to find someone receiving more than $5,000 a month in income should be allowed to proceed at public expense.”). / / / / / / / / / /

Plaintiff’s Application appears to be incomplete. On the Application, Plaintiff listed $1,235 as her spouse’s “Regular expenses for operation of business, profession, or farm.” Dkt. No. 2 at 5. Although the form directs Plaintiff to “attach detailed statement,” Plaintiff Plaintiff must pay the requisite filing fee on or before April 7, 2021, or her case may be dismissed.

IT IS SO ORDERED.

Dated: February 18, 2021 □

Daud aio

Honorable Daniel E. Butcher United States Magistrate Judge