United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS [ECF NO. 7]
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
25, 2019, Plaintiff Joshua Jason Henry filed an amended
complaint in this action seeking judicial review under 42
U.S.C. § 405(g) of an adverse final decision for
social-security disability benefits. ECF No. 6. On June 15,
2019, he submitted a motion seeking leave to proceed in
forma pauperis (“IFP”). ECF No. 7. For the
reasons outlined below, the Court GRANTS
Plaintiff's IFP motion.
parties instituting any civil action, suit, or proceeding in
a district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee. 28 U.S.C.
§ 1914(a). Under 28 U.S.C. § 1915(a), a litigant
who is unable to pay the filing fee because of indigency may
petition the court to proceed IFP which allows the litigant
to commence the action without paying the filing fee.
well-settled that a party need not be completely destitute to
proceed IFP. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339-40 (1948). The determination of
indigency falls within the district court's discretion.
See Cal. Men's Colony v. Rowland, 939 F.2d 854,
858 (9th Cir. 1991) (noting “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”), rev'd
on other grounds, 506 U.S. 194 (1993). “An
affidavit in support of an IFP application is sufficient
where it alleges that the affiant cannot pay the court costs
and still afford the necessities of life.” Escobedo
v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)
(citing Adkins, 335 U.S. 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). Finally, the facts as to the
litigant's indigency must be stated “with some
particularity, definiteness and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
read and considered Plaintiff's application, the Court
finds that Plaintiff meets the requirements in 28 U.S.C.
§ 1915 for IFP status. Plaintiff has not been employed
for the past two years. ECF No. 7 at 2. He states his only
source of income is a monthly allowance of $191 in food
stamps and a gift of $25-35/week from an unidentified source.
Id. Plaintiff states he has no assets. Id.
at 3. Upon review of Plaintiff's IFP application, the
Court finds that requiring Plaintiff to pay the court filing
fees would impair his ability to obtain the necessities of
life. See Escobedo, 787 F.3d at 1234 (citing
Adkins, 335 U.S. at 339).
light of the foregoing, the Court GRANTS
Plaintiff's application for leave to proceed in forma
pauperis. (ECF No. 3.) However, if it appears at any
time in the future that Plaintiff's financial picture has
improved for any reason, the Court will direct Plaintiff to
pay the filing fee to the Clerk of the Court. This includes
any recovery Plaintiff may realize from this suit or others,
and any assistance Plaintiff may receive from family or the
the Court ORDERS as follows:
1. The Clerk shall issue a summons as to Plaintiff s
Complaint (ECF No. 7) upon Defendant and shall forward it to
Plaintiff along with a blank U.S. Marshal Form 285. In
addition, the Clerk shall provide Plaintiff with a certified
copy of this Order and a certified copy of her Complaint and
the summons. Upon receipt of this “IFP Package, ”
Plaintiff is directed to complete the Form 285 as completely
and accurately as possible, and to return it to the U.S.
Marshal according to the instructions provided by the Clerk
in the letter accompanying her IFP package. Upon receipt, the
U.S. Marshal shall serve a copy of the complaint and summons
upon Defendant as directed by Plaintiff on the form. All
costs of service shall be advanced by the United States. See
28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3).
2. Defendant shall reply to the complaint within the time
provided by the applicable provisions of Federal Rule of
Civil Procedure 12(a) and consistent with Civil Local Rule
3. Plaintiff shall serve upon Defendant or, if appearance has
been entered by counsel, upon Defendant's counsel, a copy
of every further pleading or other document submitted for
consideration of the Court. Plaintiff shall include with the
original paper to be filed with the Clerk of the Court a
certificate stating the manner in which a true and correct
copy of any document was served on the Defendant or counsel
of Defendant and the date of service.