Blevins v. O'Malley

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON BARBARA B., NO. 4:24-CV-5091-TOR 8 Plaintiff, ORDER DENYING IN FORMA 9 v. PAUPERIS STATUS MARTIN O’MALLEY, Commissioner of Social Security, Defendant.

BEFORE THE COURT is the Magistrate Judge’s Report and Recommendation regarding Plaintiff’s application to proceed in forma pauperis.

ECF Nos. 2; 5. The Court has reviewed the record and files herein and is fully informed. For the reasons discussed below, the Report and Recommendation (“R&R”) (ECF No. 5) is ADOPTED in full and Plaintiff’s Application to Proceed In Forma Pauperis (“IFP”) (ECF No. 2) is DENIED.

BACKGROUND Pursuant to the delegation provided in this District’s Local Magistrate Judge Rule 2(a)(7), the Magistrate Judge ruled on Plaintiff’s IFP application with the recommendation that Plaintiff’s application be denied. Id. Plaintiff did not file an objection within the time allotted.

3 DISCUSSION 4 “[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, . . .

6 without prepayment of fees or security therefor.” 28 U.S.C. § 1915(a)(1). A plaintiff may commence an action without paying the filing fees by submitting an affidavit stating that she lacks sufficient funds and upon a finding that her suit is not frivolous or malicious. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted). The affidavit is sufficient if it states that the plaintiff, because of her poverty, cannot “pay or give security for the costs” and still be able to provide for herself and dependents the “necessities of life.” Adkins v. E.I.

13 DuPont de Numours & Co., 335 U.S. 331, 339 (1948). The IFP statute does not define what constitutes insufficient assets, but the Ninth Circuit has recognized that “[o]ne need not be absolutely destitute to obtain benefits of the [IFP] statute.”

16 Escobedo, 787 F.3d at 1234 (citation omitted). Nevertheless, a plaintiff seeking IFP status must allege poverty “with some particularity, definiteness and certainty.” Id. (citation omitted) 19 Pursuant to Federal Rule of Civil Procedure 72, the district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to” and “may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C). A party has fourteen (14) days after service of a copy of the R&R to file and serve written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); ECF No. 5 at 2. Failure to file objections within the specified time waives the right to challenge the Magistrate Judge’s findings of fact. Turner v. Duncan, 158 F.3d 7 449, 455 (9th Cir. 1998). The failure to object to a pure legal conclusion, however, is only “a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” In re Grand Jury Subpoena (Mark Torf/Torf Env. Mgmt.), 357 10 F.3d 900, 910 (9th Cir. 2004) (quoting Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991)).

12 As mentioned, Plaintiff did not file objections within the fourteen-day time frame. See ECF No. 5 at 2. The Court has reviewed Plaintiff’s application for IFP status, which establishes that her monthly income exceeds $7,500 a month. ECF No. 2 at 1. Therefore, the Court agrees with the Magistrate Judge’s conclusion that Plaintiff has not established indigency and that she has sufficient means to cover the Filing Fee and Administrative Fee required under 28 U.S.C. § 1914.

18 // // // ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. The Magistrate Judge’s Report and Recommendation, ECF No. 5, is 3 ADOPTED.

4 2. Plaintiff's Application to Proceed Jn Forma Pauperis, ECF No. 2, is 5 DENIED. Plaintiff SHALL PAY the full filing and administrative fee 6 within thirty (30) days of this Order. Absent timely compliance with this 7 Order, this action will be dismissed without further notice.

8 The District Court Executive is directed to enter this Order and furnish 9|| copies to the parties. The file remains OPEN.

10 DATED August 29, 2024.

Sa gp TO, 0 ee 12 On Ke THOMAS O. RICE <> United States District Judge