Bailey v. O'Malley

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I RICHARD JAMES BAILEY, Case No. 24-cv-00103-DKW-WRP Plaintiff, ORDER GRANTING APPLICATION TO PROCEED IN vs. DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS1 MARTIN O’MALLEY, Commissioner of Social Security, Defendant.

Plaintiff Richard Bailey moves for leave to proceed without prepaying fees or costs in this action appealing a decision by the Social Security Administration (“IFP Application”). Dkt. No. 4.

Pursuant to 28 U.S.C. § 1915(a)(1), federal courts may authorize the commencement of suit without prepayment of fees or securities by a person who submits an affidavit demonstrating the inability to pay. Although Section 1915(a) does not require an IFP applicant to demonstrate absolute destitution, Adkins v. E.I.

DuPont de Nemours & Co., 335 U.S. 331, 339 (1948), he must nevertheless “allege poverty with some particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quotation marks and citations omitted). The affidavit is sufficient where it alleges that the applicant “cannot pay 1Pursuant to Local Rule 7.1(d), the Court elects to decide this matter without a hearing. the court costs and still afford the necessities of life.” Id. (citing Adkins, 335 U.S. at 339); see 28 U.S.C. § 1915(a)(1).

Here, Bailey has satisfied the requirements of Section 1915(a). In his IFP Application, Bailey explains that his monthly income consists of $1,200 in take- home pay2 and $173 in food stamps. Dkt. No. 4 at 1. Although he has $2,200 in a checking or savings account, he has no items or assets of value. Id. at 2. Finally, the monthly expenses for his rent, cell phone, food, clothing, and vehicle total $1,150.3 Id. As such, once Bailey’s monthly expenses are taken into account, he would have $223 per month in income—an amount significantly less than the $405 filing fee. In light of Bailey’s limited income4 and savings, the Court therefore finds that he lacks the ability to pay the filing fee for this action while still being able to afford the necessities of life. See Escobedo, 787 F.3d at 1234–36. Bailey’s IFP Application, Dkt. No. 4, is therefore GRANTED.5 2Bailey additionally lists his gross pay as being $18.48 a month. Dkt. No. 4 at 1. As this amount is facially implausible—particularly given his take-home pay—this appears to be a typographical error. Nevertheless, given Bailey’s take-home pay, savings, and expenses, any uncertainty as the amount of his gross pay does not affect the Court’s decision.

3More granularly, Bailey’s monthly expenses include $250 for rent, $75 for his cell phone, $150 for gas, $75 for car insurance, $200 for food, $100 for clothing, and $300 for car repairs and oil changes. Dkt. No. 4 at 2.

4Based on Bailey’s take-home pay, his income falls below the poverty threshold identified in the Department of Health and Human Services’ (“HHS”) 2024 Guidelines for Hawaiʻi. See HHS Poverty Guidelines, available at: https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty- guidelines.

5Rule 3 of the Supplemental Rules for Social Security Actions provides that plaintiffs are not required to serve summons and complaints in actions for review of social security decisions. See IT IS SO ORDERED.

DATED: March 11, 2024 at Honolulu, Hawai‘i.

LO /s/ Derrick K. Watson dot Derrick K. Watson Rn Chief United States District Judge Richard James Bailey vs. Martin O’Malley; Civil No. 24-00103 DK W-WRP; ORDER GRANTING APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS Fed. R. Civ. P. Supp. Soc. Sec. R. 3. Accordingly, it is unnecessary for the Court to direct service of Bailey’s Complaint. -3-