(SS) Jones v. Commissioner of Social Security, No. 1:2019cv01049 - Document 5 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Denying Plaintiff's Applications to Proceed In Forma Pauperis re 2 , 4 , and Directing Clerk of the Court to Randomly Assign Matter to District Judge, signed by Magistrate Judge Stanley A. Boone on 8/15/19. This case is assigned to District Judge Dale A. Drozd and Magistrate Judge Stanley A. Boone. The new case no. is: 1:19-cv-01049-DAD-SAB. Referred to Judge Drozd. Objections to F&R Due Within 14-Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLE JONES, Plaintiff, 12 13 14 15 Case No. 1:19-cv-01049-SAB 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 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 (ECF Nos. 2, 4) 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 On July 31, 2019, Nicole Jones (“Plaintiff”) filed the complaint in this action seeking 20 judicial review of the final decision of Defendant Commissioner of Social Security 21 (“Defendant”) denying her application for benefits under the Social Security Act. (ECF No. 1.) 22 Plaintiff also filed an application to proceed in forma pauperis without prepayment of the filing 23 fee on the same day. (ECF No. 2.) The Court reviewed Plaintiff’s application to proceed in 24 forma pauperis and found that it appeared that Plaintiff was not entitled to proceed without 25 prepayment of fees. (ECF No. 3.) Plaintiff was ordered to file a long form application to 26 proceed without prepayment of fees. (Id.) Currently before the Court is Plaintiff’s long form 27 application to proceed in this action without prepayment of fees. (ECF No. 4.) 28 In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an 1 1 affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 2 § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and 3 not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 4 194, 198 n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to 5 proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis 6 status does not violate the applicant’s right to due process”). A plaintiff need not be absolutely 7 destitute to proceed in forma pauperis and the application is sufficient if it states that due to his 8 poverty he is unable to pay the costs and still be able to provide himself and his dependents with 9 the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 10 Whether to grant or deny an application to proceed without prepayment of fees is an exercise of 11 the district court’s discretion. Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 12 As Plaintiff was previously advised in assessing whether a certain income level meets the 13 poverty threshold under Section 1915(a)(1), courts look to the federal poverty guidelines 14 developed each year by the Department of Health and Human Services. See, e.g., Paco v. 15 Myers, No. CIV. 13-00701 ACK, 2013 WL 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of 16 Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited 17 therein). 18 Plaintiff’s original application states that she relies on her husband for support and no 19 other person depends upon Plaintiff for support. Based on the income reported which was 20 $1,792.00 per month, Plaintiff’s household income was $21,504.00 per year. Further, Plaintiff 21 indicated that they own their mobile home and their automobile. The 2019 Poverty Guidelines 22 for the 48 contiguous states for a household of two is $16,910.00. 2019 Poverty Guidelines, 23 http://aspe.hhs.gov/poverty/19poverty.cfm (last visited August 1, 2019). Based on the 24 information provided, the Court found that it did not appear that Plaintiff is entitled to proceed 25 without prepayment of fees in this action. 26 In her current application, Plaintiff indicates that her husband receives $1,792.00 in 27 retirement and $1,160.00 in worker’s compensation benefits for a total of $2,952.00 per month. 28 (ECF No. 4 at 2.) Therefore, rather than a yearly income of $21,504.00, the household income is 2 1 $35,424.00 approximately double the poverty guideline level for a family of two. The monthly 2 expenses for the family are $1,954.00 leaving them with approximately $1,000.00 of additional 3 monies each month. (Id. at 4-5.) Further, the application demonstrates that all expenses for 4 Plaintiff are paid out of the family income indicating that Plaintiff has access to these funds. 5 Based on the current application, the court finds that Plaintiff has the ability to pay the filing fee 6 in this action without being deprived of the necessities of life and is not entitled to proceed 7 without prepayment of fees in this action. Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s application to 8 9 proceed without prepayment of fees be denied and Plaintiff be ordered to pay the $400.00 filing 10 fee in this action. The Clerk of the Court is HEREBY DIRECTED to randomly assign this action to a 11 12 district judge. This findings and recommendations is submitted to the district judge assigned to this 13 14 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 15 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 16 and recommendations with the court. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 18 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 19 Plaintiff is advised that failure to file objections within the specified time may result in the 20 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 21 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: August 15, 2019 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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