United States District Court, S.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
J. WHELAN UNITED STATES DISTRICT JUDGE
Timothy Lee Cass filed this action on July 5, 2017, seeking
review of the denial of his application for disability
insurance benefits under the Social Security Act.
(Compl. [Doc. 1].) He thereafter filed the pending
motion to proceed in forma pauperis
(“IFP”) under 28 U.S.C. § 1915.
(Pl.'s Mot. [Doc. 2].) The Court decides the
matter on the papers submitted pursuant to Civ. L.R.
7.1(d)(1). For the reasons outlined below, the Court DENIES
the IFP motion. [Doc. 2.]
determination of indigency falls within the district
court's discretion. 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
well-settled that a party need not be completely destitute to
proceed in forma pauperis. See 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 (internal quotations omitted). 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). “[T]he greater power to waive
all fees includes the lesser power to set partial
fees.” Olivares v. Marshall, 59 F.3d 109, 111
(9th Cir. 1995).
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) (internal quotation omitted).
District courts tend to reject IFP applications where the
applicant can pay the filing fee with acceptable sacrifice to
other expenses. See, e.g., Allen v. Kelly,
1995 WL 396860 at *2 (N.D. Cal. 1995) (initially permitting
Plaintiff to proceed in forma pauperis but later requiring
him to pay $120 filing fee out of $900 settlement proceeds);
Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982)
(“[P]laintiff 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 . . . .”). Permission to proceed IFP is
“a matter of privilege and not right[, ]”
Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir.
1984), and “ ‘in forma pauperis status may be
acquired and lost during the course of litigation.'
” Baize v. Lloyd, 2014 WL 6090324, at *1 (S.D.
Cal. Nov. 13, 2014) (quoting Wilson v. Dir. of Div. of
Adult Insts., 2009 WL 311150, at *2 (E.D. Cal. Feb. 9,
to his declaration, Cass earns a gross $5529.29 per month,
and his spouse $659.00 per month-both from retirement income.
(Pl.'s Mot. [Doc. 2] 2.) This yields a total of
$6188.29/month. (See id.) He owns $350, 000 equity
in his home, other real estate worth $27, 500, and two
vehicles worth $500 and 700, respectively. (See Id.
[Doc. 2] 3.) Cass declares that he has a sum total of $250.00
in any financial institution. (See Id. [Doc. 2] 2.)
to Cass' declaration, no one relies on him or his spouse
for support. (Pl.'s Mot. [Doc. 2] 3.) Yet Cass
declares that he and his spouse spend $1, 726.00 monthly on
rent or a home mortgage payment, in addition to $1, 850.00
each month on utilities, $1, 400.00 monthly on food, $450.00
monthly on clothing, and $50.00 monthly in taxes. (See
Id. [Doc. 2] 4-5.) These figures yield monthly expenses
in the amount of $5, 476.00. (See id.)
filing fee for an ordinary civil action is $400. It is not
clear what individual payments might comprise a $1, 850
monthly utilities budget. Nor does the motion elucidate why
Cass and his spouse could not deduct from a $1, 400 monthly
food budget or a $450 monthly clothes budget to pay a $400
filing fee without sacrificing the necessities of life.
See Adkins, 335 U.S. at 339-40; 28 U.S.C. §
motion will be denied.
Conclusion & Order
reasons addressed above, the Court DENIES Plaintiffs motion