1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 DAWN LOVCI, Case No.: 23-cv-1109-WQH-BGS

8 Plaintiff, ORDER DENYING WITHOUT 9 v. PREJUDICE MOTION FOR LEAVE TO PROCEED IN FORMA 10 KILOLO KIJAKAZI, Commissioner of PAUPERIS Social Security, 11 Defendant. [ECF 2] 12

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.) She has not paid 17 the civil filing fee required to commence this action, and by this motion, she moves to 18 proceed in forma pauperis (IFP). (ECF 2.) This Report and Recommendation is submitted 19 to United States District Judge William Q. Hayes pursuant to

(b)(1) and 20 Local Civil Rule 72.1(c). For the following reasons, IT IS RECOMMENDED that the 21 motion be DENIED without prejudice. 22 All parties instituting any civil action, suit, or proceeding in a district court of the 23 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28

(a); see

(a) (requiring a party instituting a civil action to 25 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 26 a plaintiff’s failure to prepay the entire fee only if the Court grants leave to proceed IFP 27 under

(a), which states: 28 [A]ny court of the United States may authorize the 1 commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, 2 by a person who submits an affidavit that includes a statement of 3 all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 4

5

(a)(1). 6 The determination of indigency is in the district court’s discretion. California Men’s 7 Colony v. Rowland,

(9th Cir. 1991), reversed on other grounds by 506

(1993). A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. 9 DuPont de Nemours & Co.,

(1948). “Nonetheless, a plaintiff seeking 10 IFP status must allege poverty ‘with some particularity, definiteness, and certainty.’” 11 Escobedo v. Applebees,

(9th Cir. 2015) (citing United States v. 12 McQuade,

(9th Cir. 1981). “An affidavit in support of an IFP application 13 is sufficient where it alleges that the affiant cannot pay the court costs and still afford the 14 necessitates of life.”

The Court may consider a plaintiff’s spouse’s financial resources 15 in determining whether a plaintiff is entitled to IFP status. Garcia de Carrillo v. Comm’r 16 of Soc. Sec.,

, *2 (E.D. Cal. May 11, 2022). Significant assets suggest 17 an ability to pay the filing fee without sacrificing the necessities of daily life. See Kaur v. 18 Comm’r of Soc. Sec., No. 1:22-cv-00367-SAB,

, at *2 (E.D. Cal. Apr. 19 1, 2022) (holding that ownership of a home worth $345,000 and three cars worth $23,837, 20 $23,069, and $4,464, respectively, and the plaintiff’s income exceeding the applicable 21 federal poverty line suggested the plaintiff had the ability to pay a $402 filing fee), report 22 and recommendation vacated, No. 1:22-cv-00367-DAD-SAB,

(E.D. 23 Cal. Apr. 5, 2022) (vacating findings and recommendations as moot after plaintiff paid 24 filing fee). In assessing whether a certain income level meets the poverty threshold under 25 § 1915(a)(1), courts look to the federal poverty guidelines developed each year by the 26 Department of Health and Human Services. McMillen v. Comm’r of Soc. Sec., No. 22-cv- 27 00925-SAB,

, * 1 (Aug. 5, 2022). 28 Plaintiff’s IFP application indicates that her gross monthly income is $0 and that her 1 spouse’s average gross monthly income is $2,947.20. (ECF 2 at 1.) Plaintiff has a 17- 2 year-old son who relies on her or her spouse for support. (Id. at 3.) Plaintiff’s spouse’s 3 annual household gross income of $35,366.40 is significantly higher than the 2023 federal 4 poverty guideline for a household of three persons, which is $24,860. See 2023 Poverty 5 Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited July 10, 2023). 6 Furthermore, Plaintiff or her spouse owns a home valued at $560,000 and three 7 automobiles valued at $4,100, $9,800, and $12,000, respectively. (Id. at 3.) Although she 8 states that her spouse’s average monthly expenses are $3002 (she states that hers are $0) 9 (id. at 4-5), which exceed her spouse’s gross monthly income, and she states that neither 10 she nor her spouse has any money in bank accounts or other financial institutions (id. at 2), 11 Plaintiff does not indicate that she does not have access to the substantial assets reported 12 in her application, which are owned by her or her spouse.1 Plaintiff’s application also 13 includes a narrative stating that she is “living [with] family right now,” has no income 14 because she cannot work, and that her spouse contributes to the mortgage and “pays all of 15 our expenses” (id. at 5); however, again, Plaintiff does not indicate that she does not have 16 access to the substantial assets reported in her application. See Kaur,

, 17 at *2. The Court finds that Plaintiff fails to allege poverty with “particularity, definiteness, 18 and certainty.” See Escobedo,

. 19 For this reason, IT IS RECOMMENDED that the District Court issue an Order 20 DENYING without prejudice the motion to proceed IFP. 21 IT IS ORDERED that any written objections to this Report must be filed with the 22 Court and served on all parties no later than July 31, 2023. The document should be 23 captioned “Objections to Report and Recommendation.” 24

25 1 The Ninth Circuit has stated that a “marital arrangement may, for good reason, not include 26 sharing income, or a spouse will have his or her own expenses (child support, say, for 27 children of a prior marriage) with little or nothing left over to share,” and that, “[f]or any number of reasons, one spouse’s funds may simply not be available to the other spouse.” 28 1

3 Dated: July 17, 2023 fon Bernard G. Skomal 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28