Opinion
Case No.: 3:20-cv-0700-BEN-JLB
11-04-2020
THERESA LYNN H., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND ORDERING SERVICE
[Docket Nos. 3, 6]
This matter was initiated on April 11, 2020, when Plaintiff filed a Complaint seeking judicial review of the Social Security Commissioner's denial of her application for disability insurance benefits. ECF No. 1. Plaintiff also filed an Application to Proceed in District Court without Prepaying Fees or Costs, commonly referred to as in forma pauperis ("IFP"). ECF No. 3. As set forth below, Plaintiff's motion is granted.
I. Motion for IFP
All parties initiating a civil action, suit, or proceeding in a United States District Court must pay a filing fee. 28 U.S.C. § 1915(a). Without the filing fee, an action may proceed only if the Plaintiff is granted leave to proceed IFP. Id.
The Court has discretion to determine indigency. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) rev'd on other grounds by 506 U.S. 194 (1993) ("Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency"). To satisfy 28 U.S.C. § 1915(a), "an affidavit [of poverty] is sufficient [if it] states that one cannot because of his poverty pay or give security for costs . . . and still be able to provide for himself and dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). The facts as to the affiant's poverty must be stated "with some particularity, definiteness, and certainty." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
Here, Plaintiff has satisfied her burden that she is entitled to IFP status. According to her application, Plaintiff's only income is $580.00 per month in pension payments, which help to pay utilities and car insurance. ECF No. 3. Her vehicles are valued at a total of approximately $2,000.00, and she owns no other property. Id. She declares she lives with a friend, who pays for her share of the rent and food. Id.
Based on the foregoing, the Court finds Plaintiff has established that paying the $400.00 filing fee would impair her ability to pay for life's necessities. See Adkins, 335 U.S. at 339-40. Accordingly, Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs is GRANTED.
II. Service
In cases involving a plaintiff who has sought and been granted IFP status, a United States Marshal, upon order of the Court, must serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3); see also 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in such cases."); Benny v. Pipes, 799 F.2d 489, 493 n.4 (9th Cir. 1986) (permitting "service by a Marshal for," inter alia, "a person proceeding in forma pauperis").
Having granted leave to proceed IFP, the Court directs the Clerk of Court to issue the summons, provide Plaintiff with a certified copy of this Order and her Complaint (ECF No. 1), and forward them to Plaintiff along with a blank United States Marshal Service ("USMS") Form 285. Upon receipt of this "IFP Package," the Court directs Plaintiff to complete the Form 285 and forward the IFP Package to the USMS. Upon receipt from Plaintiff, the USMS will serve a copy of the complaint and summons upon each Defendant as directed by Plaintiff on the USMS Form 285. The United States will advance all costs of service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
Plaintiff must serve upon the 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 by the Court. Plaintiff must 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 the document was served on the Defendant, or counsel for the Defendant, and the date of that service. Any paper received by the Court which has not been properly filed with the Clerk, or which fails to include a Certificate of Service, may be disregarded.
III. Conclusion
Plaintiff's Motion to Proceed IFP is GRANTED. ECF No. 3. The Clerk of Court is ORDERED to direct service in conjunction with the foregoing. Plaintiff's Motion to Lift the Stay is DENIED as moot. ECF No. 6.
IT IS SO ORDERED. Date: November 04, 2020
/s/_________
HON. ROGER T. BENITEZ
United States District Judge