Rapozo v. Kijakazi

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I TASHA L. RAPOZO, Case No. 22-cv-00166-DKW-WRP Plaintiff, ORDER (1) GRANTING APPLICATION TO PROCEED IN v. DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS, KILOLO KIJAKAZI, Acting AND (2) DIRECTING SERVICE OF Commissioner of Social Security, THE COMPLAINT1 Defendant.

Plaintiff Tasha Rapozo, proceeding pro se, moves for leave to proceed without prepaying fees or costs in this social security appeal (“IFP Application”).

Dkt. No. 6.2 I. IFP Application Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). While 1The Court finds these matters suitable for disposition without a hearing pursuant to Local Rule 7.1(c).

2Rapozo previously moved for leave to proceed without prepaying fees or costs when initiating this action. That earlier motion, however, was denied for failure to fully complete the application. Dkt. Nos. 3, 5.

Section 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant must nonetheless show that she is “unable to pay such fees or give security therefor,” 28 U.S.C. § 1915(a).

Here, Rapozo has made the required showing under Section 1915(a). In the IFP Application, Rapozo states that she receives roughly $408 in gross and take- home pay per month. She further states that she receives various forms of other income. These are: $1,165 in rental assistance from the County of Hawai‘i per month; $388 in welfare per month; $470 in “SNAP” benefits per month; and $245 from “self-employment” per year. Rapozo states that she has $6 in a checking or savings account and no other assets. Rapozo further states that she has monthly expenses of roughly $145 for electricity, $185 for rent (beyond the assistance provided by the County), and roughly $90 for television and/or internet. In light of these figures, once Rapozo’s monthly expenses are taken into account, she would not have the means to pay the filing fee for this action while still being able to afford the necessities of life. See Escobedo v. Applebees, 787 F.3d 1226, 1234-

36 (9th Cir. 2015).3 In addition, Rapozo has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 6.

II. Service Because Rapozo has been granted leave to proceed in forma pauperis, the Court finds that service of the summons and Complaint is appropriate. See Fed.R.Civ.P. 4(c)(3). To facilitate service, the Court ORDERS as follows: 1. The Clerk’s Office is directed to send to Plaintiff: one copy of the Complaint, Dkt. No. 1; one summons; one USM-285 form; one Notice of Lawsuit and Request for Waiver of Service of Summons form (AO 398); two (2) Waiver of Service of Summons forms (AO 399); an instruction sheet; and a copy of this Order. The Clerk shall also send a copy of this Order to the U.S. Marshal.

2. Plaintiff shall complete the forms as directed and submit the following documents to the U.S. Marshal in Honolulu, Hawaii: a completed USM-285 form; a copy of the Complaint; the summons; a completed Notice of Lawsuit and Request for Waiver of Service of Summons form (AO 398); and two (2) completed Waiver of Service of

3Based upon the information provided in the IFP Application, after monthly expenses are taken into account, Rapozo would have roughly $396 per month in income−an amount less than the $402 filing fee for this action.

Summons forms (AO 399).

3. Upon receipt of these documents from Plaintiff, the U.S. Marshal shall mail to the Defendant: a copy of the Complaint; a completed Notice of Lawsuit and Request for Waiver of Service form (AO 398); and two (2) completed Waiver of Service of Summons forms (AO 399), as directed by Plaintiff without payment of costs. See Fed.R.Civ.P. 4(c)(3).

4. The U.S. Marshal shall retain the summons and a copy of the Complaint. The U.S. Marshal shall also file a returned Waiver of Service of Summons form as well as any Waiver of Service of Summons form that is returned as undeliverable, as soon as it is received.

5. If Defendant does not return a Waiver of Service of Summons form within sixty days from the date that such forms are mailed, the U.S. Marshal shall: a. Personally serve such Defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c). b. Within ten days after personal service is effected, file the return of service for such Defendant, along with evidence of any attempts to secure a waiver of service of summons and of the costs subsequently incurred in effecting service. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the U.S. Marshal’s office in photocopying additional copies of the summons and the Complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served Defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2).

6. If Rapozo does not wish to use the U.S. Marshal for service, she may serve Defendant on her own, in compliance with Fed.R.Civ.P. 4.

7. Rapozo is cautioned that if she fails to comply with this Order and her non-compliance prevents timely and proper service as set forth in Federal Rule of Civil Procedure 4(m), this action is subject to dismissal for failure to serve.

8. After service of the summons and Complaint, whether accomplished on her own or with the services of the U.S. Marshal, Rapozo must serve on Defendant or, if applicable, Defendant’s attorney a copy of all further documents she submits to the Court. The U.S. Marshal is not responsible for serving these documents on Plaintiffs behalf.

Rapozo shall include, with any original paper filed with the Clerk of Court, a certificate stating the date that a copy of the document was served on Defendant or Defendant’s counsel, and the manner in which service was accomplished. Any paper received by a District or Magistrate Judge that has not been filed with the Clerk of Court or that does not include a certificate of service will be disregarded.

9. Rapozo is further notified that she must comply with the Federal Rules of Civil Procedure and the Local Rules for the District of Hawaii throughout all proceedings in this Court.

IT IS SO ORDERED.

Dated: May 19, 2022 at Honolulu, Hawai‘1.

@ , Ze %, 1 is pa Derrick K. Watson United States District Judge