United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN
FORMA PAUPERIS [ECF No. 3]
Barbara L. Major United States Magistrate Judge.
initiated the instant litigation on September 22, 2019, when
she filed a complaint against Defendant appealing the
decision denying Plaintiff benefits. ECF No. 1. On the same
date, Plaintiff also filed a motion to proceed in forma
pauperis (“IFP”). ECF No. 3. Plaintiff was
notified that his case was assigned to Magistrate Judge
Barbara L. Major pursuant to General Order 707. ECF No. 2.
Attached to the notice was a consent/declination form through
which Plaintiff had the choice to consent or decline
magistrate jurisdiction. Id. On October 8, 2019,
Plaintiff filed her consent to magistrate judge jurisdiction.
ECF No. 5. For the reasons set forth below, this Court
DENIES Plaintiff's motion to proceed
TO PROCEED IN FORMA PAUPERIS
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.
§ 1915(a). An action may proceed despite a
plaintiff's failure to prepay the entire fee only if he
is granted leave to proceed IFP pursuant to 28 U.S.C. §
1915(a), which states:
[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding … without prepayment of fees or security
therfor, by a person who submits an affidavit that includes a
statement of all assets such [person] possesses that the
person is unable to pay such fees or give security therfor.
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 by, 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
indigency.”). It is 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). 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 . . . still be unable to provide for
himself and dependents with the necessities of life.”
Id. at 339. At the same time, “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 tend to reject IFP applications where
the applicant can pay the filing fee with acceptable
sacrifice to other expenses. See, e.g., Allen v.
Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995)
(Plaintiff initially permitted to proceed IFP, later required
to pay $120 filing fee out of $900 settlement proceeds);
Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982)
(IFP application denied because the plaintiff possessed
savings of $450 and that was more than sufficient to pay the
filing fee). Moreover, 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).
fails to satisfy her burden of demonstrating that she is
entitled to IFP status. Plaintiff submitted her application
to proceed IFP, stating that she makes $19.42 per hour and
works 40 hours per week. ECF No. 3 at 1. Plaintiff reports
that she has three dependents who rely on her for support,
ages fourteen, fifteen, and seventeen, and that she has $0 in
her checking account after bills. Id However,
Plaintiff also reports that she has $17, 000 in her savings
and when listing other sources of income, Plaintiff states
that her husband owns a UPS store and his estimated annual
income is $56, 873. Id. at 1-2. In addition, though
Plaintiff makes a car payment of $440 per month, she also
owns two separate vehicles valued at $3, 000 and $6, 000.
Id. After reviewing Plaintiff's financial
background, the Court finds that IFP status is not
appropriate, because Plaintiff has the resources to pay the
filing fee by making acceptable sacrifices to other expenses.
Allen, 1995 WL 396860 at *2; see also McCollough
v. Colvin, 2016 WL 9458801, at *1 (S.D. Cal. May 19,
2016) (denying IFP status where Plaintiff had $495.22 in his
checking account, $4881.30 in a money market, and was both
unemployed and living with family). Accordingly,
Plaintiff's motion to proceed IFP is
reasons set forth above, the Court DENIES
Plaintiff's motion to proceed IFP. Plaintiff must pay the
filing fee as required by 28 U.S.C. § 1914(a) no later
than November 17, 2019 or her case
will be dismissed.