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Sutton v. Colvin

United States District Court, S.D. California

September 19, 2014

LINWOOD SUTTON, Plaintiff,
v.
CAROLYN COLVIN, acting Commissioner of Social Security, Defendant.

ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (ECF 2)

CYNATHIA BASHANT, District Judge.

On August 26, 2014, Plaintiff Linwood Sutton filed a Complaint against Carolyn Colvin and moved to proceed in forma pauperis ("IFP"). ECFs 1, 2. For the reasons outlined below, the Court DENIES Plaintiff's IFP motion, without prejudice to revisit the issue if new facts arise. Plaintiff may pay the fee in installments of $50 per month and must pay the first installment within 30 days of the date of this Order.

DISCUSSION

The determination of indigency falls within the district court's discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 194 (1993) (holding that "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"). 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. ยง 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. 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).

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, 841 F.Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district court did not abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and who received $110 per month from family). Moreover, " in forma pauperis status may be acquired and lost during the course of litigation." Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F.Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma pauperis should be required to pay his $120 filing fee out of a $900 settlement). In addition, 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).

Here, Plaintiff claims support from spousal income of $1, 158.46 and potential total expenses of $1, 041. Therefore the Court concludes that Plaintiff can afford to pay the filing fee in installments. Accordingly, the Court DENIES the request to proceed IFP. The Court orders Plaintiff to pay the $400 filing fee in installments of $50 per month, absent a further application for IFP properly completed demonstrating Plaintiff's inability to pay $50 per month. The Court orders Plaintiff to pay the first $50 installment within 30 days of the date of this Order.

IT IS SO ORDERED.


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