Opinion
CV-22-01626-PHX-DGC
10-17-2022
Sundance Burke, as surviving spouse and substitute party for Kay Lynn Burke, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
This action is an appeal from a final administrative decision denying Plaintiff Sundance Burke's claim for widow insurance benefits. Doc. 1. Plaintiff has filed an application to proceed in forma pauperis (“IFP”). Doc. 2. For reasons stated below, the Court will deny the application.
The Court may grant IFP status to an indigent party who submits an affidavit showing that he is unable to pay or give security for fees. 28 U.S.C. 1915(a)(1). Because IFP status is a privilege, not a right, however, the Court should grant IFP status only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960); see also Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (explaining that the denial of IFP status is not a violation of due process because such status is “granted as a privilege and not as a matter of right”). The Court should grant IFP status only if the supporting affidavit shows that the party cannot, because of his poverty, pay or give security for fees and “still be able to provide himself and his dependents with the necessities of life.” Adkins v. E. I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948); see Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (same); City of Ashland v. Cooper, 863 F.2d 691, 692 (9th Cir. 1988) (explaining that § 1915(a) was intended to guarantee that no person should be denied an opportunity to commence an action “solely because his poverty makes it impossible”).
Plaintiff's supporting affidavit states that his monthly income from retirement benefits and self-employment is expected to be more than $5,000. Doc. 2 at 1-2. Plaintiff also has about $2,700 in his personal bank accounts and assets worth $11,500. Id. at 2-3. Plaintiff has not shown that he is living in poverty. See HHS Poverty Guidelines for 2022, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines ($13,590 for a household of one). And because Plaintiff's monthly expenses total $4,300 (Doc. 2 at 5), the Court cannot conclude that requiring him to pay the $402 filing fee in this case would deprive him of life's necessities. See Calderon v. Comm'r of Soc. Sec., No. 1:22-cv-00890-DAD-SAB, 2022 WL 3999779, at *1 (E.D. Cal. Sept. 1, 2022) (denying IFP application and explaining that “plaintiff's annual household income was greater than the 2022 federal poverty guideline for a household of four persons, that plaintiff's monthly household income exceeds his monthly expenses by over $1,000, and that plaintiff's expenses reflected at least some extent of discretionary spending beyond strict necessity that do not suggest plaintiff is living in poverty”); Michael H. v. Kijakazi, No. 22-CV-00977-JLB, 2022 WL 4230452, at *2 (S.D. Cal. Aug. 24, 2022) (“The Court finds that Plaintiff's affidavit of assets reflects that he can pay the court filing fee and still afford the necessities of life. Although Plaintiff claims that he often borrows from his savings for bills, he does not meet the threshold for alleging poverty.”).
While Plaintiff has significant credit card debt, no payments are being made because the accounts are more than 20 years old and in collection. Doc. 2 at 6.
IT IS ORDERED that Plaintiff's IFP application (Doc. 2) is denied.