Opinion
CV-22-0761-PHX-JFM
05-06-2022
Francine A. Lopez, Plaintiff v. Commissioner of Social Security Administration, Defendant.
To the Honorable Stephen M. McNamee, Senior District Judge:
REPORT & RECOMMENDATION RE IFP APPLICATION
James F.Metcalf, United states magistrate Judge.
Plaintiff seeks to proceed in forma pauperis, without prepayment of fees or costs, and has submitted an application in accordance with 28 U.S.C. § 1915 and Local Civil Rule 3.3.
This matter has been assigned to the undersigned magistrate judge pending consent to magistrate judge jurisdiction by the parties. Consent of all parties has not yet been obtained. Although a magistrate judge may, pending consent, grant an application to proceed in forma pauperis, the magistrate judge may not deny such an application. See Local Civil Rule 72.2(a)(4) (authority over IFP applications, except to deny pending consent). Compare Tripati v. Rison, 847 F.2d 548 (9th Cir.1988) (no authority to deny IFP) with Bailes v. United States, 8 F.3d 20 (5th Cir. 1993) (authority to grant). Because the undersigned concludes Plaintiff's Application should be denied, the undersigned proceeds by way of Report and Recommendation.
The Court has reviewed Plaintiff's Application, and finds that Plaintiff has not established that she qualifies to proceed in forma pauperis. It is true that an applicant need not “be absolutely destitute to enjoy the benefit of the statute.. .[or to face spending] the last dollar they have or can get, and thus make themselves and their dependents wholly destitute” to proceed with their claim. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Rather, the application need only show that they cannot pay the fees without hardship.
Although Plaintiff's Application reflects expenses beyond her $3,767 monthly long term disability income (which is apparently terminable if she is determined no longer disabled), it also reflects some $357,000 in retirement funds, some $910 in stocks, (which are not shown to be unavailable or illiquid), and combined assets approaching $400,000. Although there may be extra costs connected with the use of retirement funds (early withdrawal penalties, etc.), the funds remain available to Plaintiff, and Plaintiff proffers nothing to show that she will now or in the near future face actual hardship as a result of their withdrawal and any associated costs. See Hagan v. Credit Union of Am., 2011 WL 13237545, at *1 (D. Kan. June 20, 2011), report and recommendation approved, 2011 WL 13237546 (D. Kan. July 8, 2011) (considering, inter alia, IFP applicant's retirement funds). Cf. In re Extradition of Patel, 2008 WL 896069, at *2 (D. Or. Mar. 29, 2008) (retirement funds considered in denying appointment of CJA counsel under 18 U.S.C. § 3006A); United States v. Konrad, 730 F.3d 343, 345 (3d Cir. 2013) (same); United States v. Meyer, No. CR-13-777-PHX-ROS, 2013 WL 3353771, at *3 (D. Ariz. July 3, 2013) (same). But see United States v. Lexin, 434 F.Supp.2d 836 (S.D. Cal. 2006) (finding IRA funds not “available” for purposes of CJA appointment).
Under these circumstances, the undersigned cannot find that Plaintiff has shown she is “unable to pay” the fees. 28 U.S.C. § 1915(a).
IT IS THEREFORE RECOMMENDED that Plaintiff's Application to Proceed In Forma Pauperis (Doc. 4) be DENIED, and if Plaintiff fails to pay the filing fees within 28 days of the filing of the Court's Order, that this case be dismissed without prejudice.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”