1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 RAMONA RILEY R., Case No.: 3:24-cv-00436-JES-BGS

8 Plaintiff,

ORDER RECOMMENDING DENIAL

9 v. OF MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

10 MARTIN O’MALLEY, Commissioner of

WITHOUT PREJUDICE AND WITH

Social Security, 11 LEAVE TO PAY THE FILING FEE Defendant. 12 [ECF 2] 13 14 15 Plaintiff has filed a Complaint seeking judicial review of a decision by the 16 Commissioner of Social Security denying disability benefits. (ECF 1.) She has not paid 17 the civil filing fee required to commence this action, and by this motion, she moves to 18 proceed in forma pauperis (IFP). (ECF 2.) This Report and Recommendation is submitted 19 to United States District Court Judge James E. Simmons pursuant to 28 U.S.C. § 636(b)(1) 20 and Local Civil Rule 72.1(c). For the following reasons, IT IS RECOMMENDED that 21 the motion be DENIED without prejudice and with leave to pay the filing fee. 22 All parties instituting any civil action, suit, or proceeding in a district court of the 23 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 24 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 25 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 26 a plaintiff’s failure to prepay the entire fee only if the Court grants leave to proceed IFP 27 under 28 U.S.C. § 1915(a), which states: 28 1 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 2 proceeding . . . without prepayment of fees or security therefor, 3 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 4 such fees or give security therefor. 5 28 U.S.C. § 1915(a)(1). 6 The determination of indigency is in the district court’s discretion. California Men’s 7 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by 506 8 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. 9 DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking 10 IFP status must allege poverty ‘with some particularity, definiteness, and certainty.’” 11 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. 12 McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). “An affidavit in support of an IFP 13 application is sufficient where it alleges that the affiant cannot pay the court costs and still 14 afford the necessitates of life.” Id. In assessing whether a certain income level meets the 15 poverty threshold under § 1915(a)(1), courts look to the federal poverty guidelines 16 developed each year by the Department of Health and Human Services. McMillen v. 17 Comm’r of Soc. Sec., No. 22-cv-00925-SAB, 2022 WL 4099069, * 1 (E.D. Cal. Aug. 5, 18 2022). 19 Plaintiff’s IFP application indicates that she is unemployed but gets Veterans 20 Administration benefits in the amount of $1,716.28 a month. (ECF 2 at 1.) She has $1,440 21 in cash in a checking or savings account, a Toyota Prius worth about $12,000, $188.15 in 22 stocks, a Roth IRA worth about $18,000, and a TSP/401k worth about $35,000. (ECF 2 at 23 2.) Plaintiff’s regular monthly expenses consist of $129 for car insurance, $18.25 for 24 renter’s insurance, $68.71 for her cell phone, and $136 for storage, totaling $351.96. (Id.) 25 Plaintiff is currently living in a mental health treatment center and does not pay rent. (ECF 26 2 at 1.) Plaintiff has not been employed since July 2023. (Id.) 27 In total, Plaintiff’s VA benefits amount to an annual income of $20,595.36, and are 28 1 || higher than the 2024 federal poverty guideline income for a household of one person, which 2 $15,060. See 2024 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last 3 || visited March 29, 2024). Furthermore, Plaintiffs monthly income currently exceeds her 4 ||expenses by $1,364.32, and she has assets that total $66,628.15. Given that □□□□□□□□□□□ 5 annual income exceeds the federal poverty level guidelines, and that Plaintiff’s monthly 6 ||income exceeds her monthly expenses by $1,364.32, and that Plaintiff has assets totaling 7 $66,628.15, the Court finds that Plaintiff fails to establish that she “cannot pay the court 8 costs and still afford the necessitates of life.” See Escobedo, 787 F.3d at 1234; see Maya 9 Kijakazi, No.: 23CV2108-BLM, 2023 WL 8458785, at *2 (S.D. Cal. Nov. 22, 2023) 10 || (denying the plaintiff's motion to proceed IFP when the plaintiff's annual household gross 11 |/income was $32,739.60, significantly higher than the federal poverty guideline income of 12 ||$19,720, his monthly expenses were $542.30 less than his monthly income, and he had 13 worth $30,000 and a car worth $5,000); Campos v. Saul, No. 1:19-cv-00248-REB, 14 }}2019 WL 13251985, *1 (D. Idaho July 11, 2019) (denying the plaintiff's motion to proceed 15 ||IFP when the plaintiff's annual household gross income was $32,880 and the federal 16 || poverty guideline income was $25,750); Johnson v. Leokane, No. 08-00432 ACK-KSC, 17 }}2008 WL 4527065, at *3 n.2 (D. Haw. Oct. 9, 2008) (denying the plaintiff's motion to 18 || proceed IFP when the plaintiff's annual household gross income was $14,124, $2,164 more 19 the federal poverty guideline income that year). 20 For the following reasons, IT IS RECOMMENDED that the District Court issue 21 Order DENYING the motion without prejudice and with leave to pay the filing fee. 22 IT IS ORDERED that any written objections to this Report must be filed with the 23 ||Court and served on all parties no later than April 12, 2024. The document should be 24 || captioned “Objections to Report and Recommendation.”

26 Dated: March 29, 2024 on. Bernard G. Skomal 27 United States Magistrate Judge 28