Opinion
Case No.: 17cv1406-MMA (NLS)
07-27-2017
TAM PHAN NGUYEN, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 4]
On July 12, 2017, Plaintiff Tam Phan Nguyen filed this social security appeal pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the denial of his application for disability benefits. Doc. No. 1. Plaintiff simultaneously filed a motion to proceed in forma pauperis ("IFP"). Doc. No. 2. The Court denied Plaintiff's motion without prejudice for lacking requisite information. Plaintiff now files a renewed application to proceed IFP. For the reasons set forth below, the Court GRANTS Plaintiff's motion to proceed IFP.
DISCUSSION
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
Plaintiff states that he receives $194.00 in food stamps, and $269.00 in general relief loans per month. Plaintiff is unemployed and has been unemployed for at least the past two years. He only has $50.00 in cash, and has no bank accounts. He lives with his parents, but his Plaintiff's total monthly expenses still amount to $463.00. Plaintiff's affidavit sufficiently shows he is unable to pay the fees or post securities required to maintain this action. As such, the Court GRANTS Plaintiff's motion to proceed in forma pauperis. The Court has also reviewed Plaintiff's complaint, and concludes it is not subject to sua sponte dismissal under 28 U.S.C. section 1915(e)(2)(B).
Accordingly, the Court hereby ORDERS as follows:
1. The Clerk shall issue a summons as to Plaintiff's complaint [Doc. No. 1] upon Defendant and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and a certified copy of his Complaint and the summons. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285 as completely and accurately as possible, and to return it to the U.S. Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy of the complaint and summons upon Defendant as directed by Plaintiff on the form. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
2. Defendant shall reply to the complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).
3. Plaintiff shall serve upon Defendant or, if appearance has been entered by counsel, upon Defendant's counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on the Defendant or counsel of Defendant and the date of service. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a Certificate of Service may be disregarded.
IT IS SO ORDERED. Date: July 27, 2017
/s/_________
Hon. Michael M. Anello
United States District Judge