(SS) Trimm v. Commissioner of Social Security, No. 1:2022cv00663 - Document 3 (E.D. Cal. 2022)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's application to proceed without prepayment of fees and costs 2 be Denied and Plaintiff be required to pay the $402.00 filing fee in full to proceed with this action ; referred to Judge Thurston; new case number 1:22-cv-00663 JLT-BAM (SS), signed by Magistrate Judge Barbara A. McAuliffe on 06/03/2022. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ALLEN TRIMM, 12 13 14 15 16 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (Doc. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Case No. 1:22-cv-00663-BAM Plaintiff David Allen Trimm (“Plaintiff”), proceeding with counsel, seeks review of a 20 decision of the Commissioner of Social Security. Plaintiff initiated this action on June 2, 2022. 21 (Doc. 1.) On the same day, Plaintiff filed an application to proceed in forma pauperis under 28 22 U.S.C. § 1915. (Doc. 2.). 23 According to Plaintiff’s application, he does not receive monthly income from 24 employment, but he does receive money from his wife’s income of $2,023.00 monthly and from 25 VA disability benefits for $2,555.00 monthly. (Doc. 2 at 1.) This amounts to an annual income 26 of $54,936.00 ($4,578.00 x 12 months). Plaintiff also owns a home valued at $220,000.00, for 27 which he owes $180,000.00. Plaintiff has one dependent. (Id. at 2.) 28 1 “To satisfy the requirements of 28 U.S.C. § 1915, applicants must demonstrate that 1 2 because of poverty, they cannot meet court costs and still provide themselves, and any 3 dependents, with the necessities of life.” Soldani v. Comm’r of Soc. Sec., No. 1:19-cv-00040, 4 2019 WL 2160380, at *1 (E.D. Cal. Jan. 31, 2019). Many courts look to the federal poverty 5 guidelines set by the United States Department of Health and Human Services (“HHS”) as a 6 guidepost in evaluating in forma pauperis applications. See Martinez v. Kristi Kleaners, Inc., 364 7 F.3d 1305, 1307 n.5 (11th Cir. 2004); Boulas v. United States Postal Serv., No. 1:18-cv-01163- 8 LJO-BAM, 2018 WL 6615075, at *1 (E.D. Cal. Nov. 1, 2018) (applying federal poverty 9 guidelines to in forma pauperis application). For a family or household of three, the 2022 poverty 10 guideline is $23,030.00. See U.S. Federal Poverty Guidelines Used to Determine Financial 11 Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/poverty-guidelines 12 (last visited June 3, 2022). 13 Having considered Plaintiff’s application, the Court finds that he has not made the 14 showing required by section 1915 that he is unable to pay the required fees for this action. 15 Plaintiff has attested to his spouse’s income as a source of income. The Court may consider 16 Plaintiff’s spouse’s financial resources in determining whether he is entitled to IFP status. See 17 Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). Further, Plaintiff has attested to 18 monthly VA disability benefits. Considering his spouse’s income and his VA disability benefits, 19 Plaintiff’s household estimated annual income is more than double the federal poverty guidelines. 20 In light of this, there is no indication that Plaintiff is unable to pay the filing fee while also 21 providing for necessities of life. Accordingly, the Clerk of the Court is HEREBY DIRECTED to 22 randomly assign a District Judge to this action. 23 Furthermore, it is HEREBY RECOMMENDED that: 24 1. 25 DENIED; and 26 27 28 Plaintiff’s application to proceed without prepayment of fees and costs (Doc. 2) be 2. Plaintiff be required to pay the $402.00 filing fee in full to proceed with this action. These findings and recommendations are submitted to the United States District Judge 2 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 2 (14) days after being served with these findings and recommendations, Plaintiff may file written 3 objections with the Court. Such a document should be captioned “Objections to Magistrate 4 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 5 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 6 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 10 IT IS SO ORDERED. Dated: /s/ Barbara June 3, 2022 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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