United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[DOC. 2] AND REFERRING TO MAGISTRATE FOR REPORT &
THOMAS J. WHELAN UNITED STATES DISTRICT JUDGE
Tho Ha filed this action on May 21, 2018, seeking review of
the denial of his application for Supplemental Security
Income 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].)
Court decides the matter on the papers submitted. For the
reasons outlined below, the Court GRANTS the IFP motion.
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). 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, 2009)).
satisfied his burden of demonstrating that he is entitled to
IFP status. According to his declaration, he receives a total
monthly income of $700 from “Social Security,
disability, or other welfare.” (Pl.'s Mot.
[Doc. 2] 2.) His monthly obligations total $500 for rent and
utilities. (Id. [Doc. 2] 3.) He has $50 in his bank
account and owns a 1990 Honda Accord. (Id. [Doc. 2]
2.) He owns no real estate, financial instruments, or other
valuable property. (Id. [Doc. 2] 3.)
filing fee for an ordinary civil action is $400. Based on the
foregoing, Ha has demonstrated that he lacks the means to pay
the filing fee without sacrificing the necessities of life.
See Adkins, 335 U.S. at 339-40. Accordingly, Ha
demonstrates entitlement to IFP status. See 28
U.S.C. § 1915.
Conclusion & Order
reasons addressed above, the Court GRANTS Plaintiffs motion
to proceed IFP. [Doc. 2.] In light of the Court's ruling
on the IFP motion, the Court orders as follows:
1. The United States Marshal shall serve a copy of the
Complaint filed on May 21, 2018 and an accompanying summons
upon Defendants as directed by Plaintiff on U.S. Marshal Form
285. All costs of service shall be advanced by the United
2. Defendant shall respond to the Complaint within the time
provided by the applicable provisions of the Federal ...