Gonzales v. Kijakazi

10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA ANTHONY GONZALEZ, Case No.: 23-CV-1611 W (DDL) 14 Plaintiff, ORDER GRANTING MOTION TO v. PROCEED IFP [DOC. 2] AND REFERRING CASE TO THE COMMISSIONER OF SOCIAL MAGISTRATE JUDGE FOR A SECURITY, 17 REPORT & RECOMMENDATION Defendant.

20 On August 31, 2023, Plaintiff Anthony Gonzalez (“Plaintiff”) filed a complaint seeking review of the denial of his application for social security disability and supplemental security income disability benefits under the Social Security Act. Along with the complaint, Plaintiff filed a motion to proceed in forma pauperis (“IFP”) (the “Motion” [Doc. 2]).

26 I. INTRODUCTION 27 The determination of indigency falls within the district court’s discretion.

28 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 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.”).

4 It is well-settled that 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). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs ... and still be able to provide himself and dependents with the necessities of life.” Id. at 339.

9 At the same time, however, “the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

13 District courts, therefore, tend to reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 851 F.Supp. 316, (N.D.Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that district court did not abuse discretion in requiring partial fee payment from prisoner with $14.61 monthly salary and $110 per month from family); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (Plaintiff initially permitted to proceed in forma pauperis, later required to pay $120 filing fee out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (in forma pauperis application denied: “plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action.”). Moreover, the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

26 Having read and considered the papers submitted, the Court finds that based on the current record, Plaintiff meets the requirements for IFP status under 28 U.S.C. § 1915.

28 According to his declaration (attached to the Motion), Plaintiff’s total monthly income is $2,200, which is derived entirely from his spouse’s employment. (Mot. § 1.) Neither || Plaintiff nor his wife have any other sources of income and Plaintiff has not been ||employed for at least two years. (/d. 1, 2.) His checking account has less than $50, 4 their only asset is a 2017 automobile, which Plaintiff is still paying off. (Ud. § 8.)

5 ||Meanwhile, Plaintiff and his spouse’s monthly expenses for rent, utilities, food, clothing, medical expenses, etc., exceed $2,200. (/d. 4] 8.) Based on these facts, the Court will || grant Plaintiff's [FP motion.

9 CONCLUSION & ORDER 10 For the reasons addressed above, the Court GRANTS Plaintiff's IFP Motion [Doc.

11 Additionally, the Court hereby REFERS all matters arising in this case to United || States Magistrate Judge David D. Leshner for a Report & Recommendation in 13 accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c)(1)\(c ).

14 If the parties seek to file motions, they shall contact the chambers of Judge Leshner || to secure scheduling, filing, and hearing dates.

16 IT IS SO ORDERED.

17 Dated: September 27, 2023 \ pe lnLor 19 Hn. 7 omas J. Whelan 0 Unted States District Judge