(SS) Medina v. Commissioner of Social Security, No. 1:2021cv00566 - Document 4 (E.D. Cal. 2021)

Court Description: ORDER Directing Clerk of Court to Randomly Assign a District Judge; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Application to Proceed In Forma Pauperis be DENIED re 1 Complaint signed by Magistrate Judge Gary S. Austin on 4/7/2021. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JOSEPHINA ANN MEDINA, 7 8 9 10 Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, 11 Defendant. 12 CASE NUMBER: 1:21-cv-00566-GSA FINDINGS AND RECOMMENDATIONS TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS AND TO REQUIRE FILING FEE PAYMENT, AND DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A UNITED STATES DISTRICT JUDGE (Docs. 2) 13 14 15 16 17 18 On April 5, 2021 Plaintiff filed a complaint in this Court and applied to proceed without prepayment of fees (in forma pauperis) pursuant to 28 U.S.C. § 1915. Docs. 1–2. 19 I. 20 In order to proceed without prepayment of the filing fee, Plaintiff must submit an affidavit 21 demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). 22 “To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th 23 Cir. 1965). 24 citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or 25 criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to 26 pay or secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal 27 quotations and citations omitted). 28 Legal Standard In enacting the in forma pauperis statute, “Congress intended to guarantee that no The determination whether a party may proceed in forma pauperis is a “matter within the 1 1 discretion of the trial court . . .” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). To proceed 2 in forma pauperis, a plaintiff need not demonstrate that s/he is completely destitute, but his/her 3 poverty must prevent him/her from paying the filing fee and providing himself/herself and his/her 4 dependents (if any) with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 5 331, 339–40 (1948). Although there is no bright line rule, courts look to the federal poverty 6 guidelines developed each year by the Department of Health and Human Services. See, e.g., Lint v. 7 City of Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases 8 cited therein). 9 II. Findings 10 Plaintiff’s application reflects that her two-person household (1 spouse and no dependents) 11 receives income of $2,852 per month ($34,224 per year) in social security and retirement income, 12 which is substantially more than the 2021 federal poverty guideline for a household of two ($17,420 13 per year). See 2021 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited April 14 7, 2021). The application also reflects that her family’s monthly income ($2,852) slightly exceeds 15 her family’s monthly expenses ($2,715), and reflects $1,180 in cash on hand (though it is earmarked 16 for rent). These facts suggest an ability to pay the $402 filing fee without sacrificing the necessities 17 of daily life. 18 III. 19 Accordingly, it is RECOMMENDED that Plaintiff’s application to proceed in forma 20 Recommendation pauperis be denied (Doc. 2). 21 The Clerk of Court is DIRECTED to randomly assign this case to a United States District 22 Judge for resolution of these findings and recommendations pursuant to the provisions of Title 28 23 U.S.C. § 636(b)(l). 24 recommendations, Plaintiff may file written objections with the court. L.R. 304(b). Such a 25 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 26 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 27 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. 28 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Within fourteen (14) days from the filing of these findings and 2 1 2 3 IT IS SO ORDERED. Dated: April 7, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 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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