United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND
DIRECTING CLERK OF THE COURT TO RANDOMLY ASSIGN MATTER TO
DISTRICT JUDGE (ECF NOS. 1, 2)
November 5, 2019, Liza Lucero Moreno
(“Plaintiff”) filed this action seeking judicial
review of the final decision of Defendant Commissioner of
Social Security (“Defendant”) denying her
application for benefits under the Social Security Act. (ECF
No. 1.) Plaintiff also filed an application to proceed in
forma pauperis without prepayment of the filing fee on
the same day. (ECF No. 2.)
order to proceed in court without prepayment of the filing
fee, Plaintiff must submit an affidavit demonstrating that
she “is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). The right to
proceed without prepayment of fees in a civil case is a
privilege and not a right. Rowland v. California
Men's Colony, Unit II Men's Advisory Council,
506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy,
745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to
proceed in forma pauperis is itself a matter of
privilege and not right; denial of in forma pauperis
status does not violate the applicant's right to due
process”). A plaintiff need not be absolutely destitute
to proceed in forma pauperis and the application is
sufficient if it states that due to his poverty he is unable
to pay the costs and still be able to provide himself and his
dependents with the necessities of life. Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
Whether to grant or deny an application to proceed without
prepayment of fees is an exercise of the district court's
discretion. Escobedo v. Applebees, 787 F.3d 1226,
1236 (9th Cir. 2015).
assessing whether a certain income level meets the poverty
threshold under Section 1915(a)(1), courts look to the
federal poverty guidelines developed each year by the
Department of Health and Human Services. See, e.g.,
Boulas v. United States Postal Serv., No.
118CV01163LJOBAM, 2018 WL 6615075, at *1 n.1 (E.D. Cal. Nov.
1, 2018); Paco v. Myers, No. CIV. 13-00701 ACK, 2013
WL 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of
Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D.
Idaho Apr. 28, 2009).
Plaintiff's application states she does not have income,
her spouse receives substantial income, and Plaintiff
indicates that no other person depends upon Plaintiff for
support. Based on the income reported which is $3, 357.00 per
month, Plaintiff's household income is $40, 284.00 per
year. (ECF No. 2 at 2.) Further, Plaintiff indicated that the
family owns their home and their automobiles. (Id.
At 3.) The 2019 Poverty Guidelines for the 48 contiguous
states for a household of two is $16, 910.00. 2019 Poverty
Guidelines, https://aspe.hhs.gov/poverty-guidelines (last
visited August 1, 2019). Therefore, Plaintiff's household
income is more than double the poverty guideline level for a
family of two. As stated in the application, the monthly
expenses for the family are $3, 190.00 leaving them with
approximately $167.00 of additional monies each month.
(Id. at 4-5.) While the monthly expenses appear to
not leave a substantial amount of extra money per month, some
of the expenses seem excessive, such as $500.00 per month for
residential utilities, and $150.00 listed under the insurance
section with the word “hygiene” written in.
(Id. at 4.) Given these facts, the Court finds that
Plaintiff has the ability to pay the filing fee in this
action without being deprived of the necessities of life and
is not entitled to proceed without prepayment of fees in this
action. See Boulas, 2018 WL 6615075, at *1 n.1
(denying IFP because income above poverty level and above the
stated expenses); (Vimegnon v. Oregon Health & Scis.
Univ., No. 3:16-CV-02304-HZ, 2017 WL 111309, at *1 (D.
Or. Jan. 9, 2017) (denying IFP because of income well above
poverty level and despite claim that couple is often left
with only $200.00 for the month, as “[w]hile Plaintiff
has some debts and the family has ongoing expenses, the
application suggests that the family's monthly income
still exceeds monthly expenses [and] the application fails to
establish that payment of the filing fee would deprive
Plaintiffs family of the necessities of life.”);
Lopez-Ruiz v. Tripler Army Med. Ctr.'s Postdoctoral
Fellowship in Clinical Psychology, No. CV. 11-0066
JMS/BMK, 2011 WL 486952, at *1 (D. Haw. Feb. 4, 2011)
(“although Plaintiff asserts that she has some debts,
her monthly income still exceeds her monthly
on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiffs
application to proceed without prepayment of fees be denied
and Plaintiff be ordered to pay the $400.00 filing fee in
this action. The Clerk of the Court is HEREBY DIRECTED to
randomly assign this action to a district judge.
findings and recommendations is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. §
636(b)(1)(B) and this Court's Local Rule 304. Within
fourteen (14) days of service of this
recommendation, Plaintiff may file written objections to this
findings and recommendations with the court. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” The district
judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
Plaintiff is advised that failure to file objections within
the specified ...