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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 JENNIFER LEE LAFAVOR, Case No. 1:23-cv-00745-CDB (SS)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DENY PLAINTIFF’S APPLICATION

13 v. TO PROCEED IN FORMA PAUPERIS AND

REQUIRING PLAINTIFF TO PAY THE

14 COMMISSIONER OF SOCIAL SECURITY, FILING FEE

15 Defendant. (Doc. 4)

16 OBJECTIONS DUE WITHIN 14 DAYS

17 Clerk of Court to Assign District Judge 18 19 20 Plaintiff Jennifer Lee Lafavor (“Plaintiff”) seeks judicial review of an administrative 21 decision of the Commissioner of Social Security denying Plaintiff’s claim for disability benefits 22 under the Social Security Act. (Doc. 1). Plaintiff did not pay the filing fee in this action and 23 instead filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). (Doc. 24 2). On May 17, 2023, the Court denied Plaintiff’s application to proceed in forma pauperis and 25 ordered Plaintiff to file a long-form application. (Doc. 3). On May 19, 2023, Plaintiff filed an 26 amended motion to proceed in forma pauperis and filed a long-form application. (Doc. 4). 27 To proceed in court without prepayment of the filing fee, a plaintiff must submit an affidavit demonstrating that she “is unable to pay such fees or give security therefor.” 28 U.S.C. 1 § 1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and 2 not a right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 3 198 n.2 (1993); see Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to 4 proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis 5 does not violate the applicant’s right to due process”), abrogated on other grounds, Neitzke v. 6 Williams, 490 U.S. 319 (1989). A plaintiff need not be absolutely destitute to proceed in forma 7 pauperis and the application is sufficient if it states that due to poverty, the applicant is unable to 8 pay the costs and still be able to provide herself and her dependents with the necessities of life. 9 Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). Whether to grant or deny 10 an application to proceed without prepayment of fees is an exercise of the district court’s 11 discretion. See Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015). 12 The Court may consider Plaintiff's spouse’s financial resources in determining whether she 13 is entitled to in forma pauperis status. Id. Plaintiff states that her spouse’s monthly income 14 amount during the past 12 months was between $3,300 and $3,200. (Doc. 4 pp. 1-2). Plaintiff’s 15 spouse has worked from 2012 to present. Id. at 2. Plaintiff proffers she and her spouse have 16 $200.00 in a joint banking account. Id. Plaintiff also proffers that she owns a home valued at 17 $600,000.00, and a 2011 Nissan Leaf valued at $500.00. Id. 18 In assessing whether a certain income level meets the poverty threshold under § 1915(a)(1), 19 courts look to the federal poverty guidelines developed each year by the Department of Health 20 and Human Services. Elmer v. Comm’r of Soc. Sec., No. 1:22-cv-01045-AWI-SAB, 2022 WL 21 5237463, at *2 (E.D. Cal. Sep. 21, 2022) (citing Lint v. City of Boise, No. CV09-72-S-ELJ, 22 2009 WL 114942, at *2 (D. Idaho. Apr. 28, 2009) (collecting cases)), F&R adopted, 2022 WL 23 9452375 (E.D. Cal. Oct. 14, 2022). Plaintiff claims two dependents. (Doc. 4 p. 3).1 The 2023 24 Poverty Guidelines for the 48 contiguous states for a household of four is $30,000. 2023 25 Poverty Guidelines, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines 26 (last visited May 22, 2023). Therefore, Plaintiff’s spouse’s income lies above the poverty 27 1 Plaintiff listed she had no dependents in her first motion for in forma pauperis. (Doc. 2 1 threshold. 2 Plaintiff also claims monthly household expenses of approximately $2,8300, which is 3 slightly below her spouse’s asserted income. (Doc. 5 p. 4-5). Plaintiff claims $500 in monthly 4 home-mortgage payments, $900 for utilities, and $500 for food. Id. at 4. Plaintiff also adds that 5 she spends $50 for laundry and dry-cleaning and $100 for recreation. 6 Turning to insurance, Plaintiff claims that her spouse pays $100 in homeowner’s insurance, 7 $100 in life insurance, and $180 in motor vehicle insurance. Plaintiff also claims an unspecified 8 $300 in tax expenses. Id. Finally, Plaintiff claims her spouse pays $100 a month in Discover 9 credit card payments. 10 To be sure, the court is sympathetic to the fact that plaintiff does not have a large income, and also has several expenses to 11 contend with. However, numerous litigants in this court have significant monthly expenditures, and may have to make difficult 12 choices as to which expenses to incur, which expenses to reduce or eliminate, and how to apportion their income between such expenses 13 and litigating an action in federal court. Such difficulties in themselves do not amount to indigency. 14 Core v. California Controllers Office, No. 2:18-cv-0155-MCE-KJN-PS, 2018 WL 15 1569416, at *1 (E.D. Cal. Mar. 20, 2018). Although she may not be wealthy, Plaintiff’s 16 household income does not suggest that Plaintiff is living in poverty and that she would not suffer 17 extraordinary hardship from paying the filing fee. Id. Accordingly, it is HEREBY ORDERED: 18 1. The Clerk of the Court is DIRECTED to randomly assign this matter to a district judge. 19 And it is HEREBY RECOMMENDED: 20 1. That Plaintiff’s application to proceed in forma pauperis be DENIED and Plaintiff be 21 ordered to pay the $402.00 filing fee for this action. 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days of 24 being served with these findings and recommendations, the parties may file written objections 25 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 26 and Recommendations.” The parties are advised that failure to file objections within the 27 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. >| Dated: _May 22, 2023 | hwnnAD R~ 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10

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