(SS) D'amore v. Commissioner of Social Security, No. 1:2016cv00260 - Document 7 (E.D. Cal. 2016)

Court Description: Findings and Recommendations to deny Plaintiff's 2 Application to Proceed In Forma Pauperis, signed by Magistrate Judge Sandra M. Snyder on 4/13/2016. Motion referred to Judge O'Neill. Objections to F&R due by 4/30/2016. (Rosales, O)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL D’AMORE, 10 Plaintiff, 11 12 13 14 v. Case No. 1:16-cv-00260-LJO-SMS FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS CAROLYN W. COLVIN, Acting Commissioner Of Social Security, (Doc. 2) Defendant. 15 This Findings and Recommendation is submitted to United States District Judge Lawrence J. 16 O’Neil under 28 U.S.C. § 636(b)(1) and Local Civil Rule 302 of the United States District Court for 17 the Eastern District of California. 18 19 20 21 On February 24, 2016, Plaintiff Michael D’Amore, by his attorney, Melissa Newel, filed a motion to proceed in forma pauperis. Doc. 2. Under section 1916(a), the Court “may authorize the commencement . . . of any suit . . . 22 without prepayment of fees or security therefor, by a person who submits an affidavit that includes a 23 statement of all assets such [person] . . . possesses that the person is unable to pay such fees or give 24 security therefor.” 28 U.S.C. § 1915(a). A plaintiff “need not be absolutely destitute to obtain 25 benefits of the in forma pauperis statute. But a plaintiff seeking IFP status must allege poverty with 26 27 28 some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quotations and citations omitted). 1 According to the Department of Health and Human Services, the 2016 poverty guideline for 1 2 a two-person household is $16,020.1 U.S. Department of Health and Human Services, Poverty 3 Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited February 26, 2016); Annual Update 4 of the HHS Poverty Guidelines, 81 Fed. Reg. 4036 (January 25, 2016). In this case, Plaintiff 5 reported that he and his wife receive $1,150 per month from renting out two mobile homes, which 6 translates to rental income of $13,800 per year. Plaintiff also reported that his wife, a dependent, 7 receives sales commission of approximately $1,000 per month, which translates to income of 8 9 $12,000 per year. Collectively, Plaintiff and his wife receive an annual income of $25,800. Under a 10 two-person household, Plaintiff’s income level is therefore $9,780 above the poverty guideline.2 11 Consequently, while sympathetic to Plaintiff’s financial circumstances, the Court is not of the view 12 that Plaintiff’s financial status—as reflected by income, personal and real property —is that of an 13 indigent. 14 Accordingly, the Court recommends DENYING Plaintiff’s motion to proceed in forma 15 16 pauperis. Within fourteen (14) days (plus three days if served by mail) after being served with a copy, 17 18 Plaintiff may file written objections with the Court.3 Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the 20 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to 21 file objections within the specified time may waive the right to appeal the District Court’s order. See 22 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991) (noting that failure to object to a magistrate 23 24 25 26 27 28 1 These poverty guidelines apply to those residing in the 48 contiguous states and the District of Columbia, excluding Alaska and Hawaii. 2 $25,800 - $16,020 = $9,780. 3 Under Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998), as amended (Sept. 9, 1998), the Court is not required to give Plaintiff an opportunity to file written objections to the recommendation that his in forma pauperis motion be denied. But as reflected in the Court’s March 16, 2016, order, objections will be permitted and considered in this case. 2 1 2 judge’s findings “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal”) (citations omitted). 3 4 5 6 7 8 IT IS SO ORDERED. Dated: April 13, 2016 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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