United States District Court, D. New Mexico
DIEDRA A. BACA, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER DENYING WITHOUT PREJUDICE MOTION TO PROCEED IN
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's motion to
proceed in forma pauperis. [Doc. 2');">2]. After
considering Plaintiff's submissions and reviewing them
pursuant to 2');">28 U.S.C. § 1915, the Court
FINDS Plaintiff's application is
deficient and should be resubmitted so the Court can fully
consider the merits.
1915 allows the Court to “authorize the commencement .
. . of any suit . . . without prepayment of fees or security
therefore, by a person who submits an affidavit that includes
a statement of all assets [the person] possesses [and] that
the person is unable to pay such fees or give security
therefore.” 2');">28 U.S.C. § 1915(a)(1). Additionally,
the “affidavit shall state the nature of the action . .
. and affiant's belief that the person is entitled to
redress.” Id. Consistent with the statute, the
movant bears the burden of showing: (1) an inability to pay;
and (2');">2) she is “raising reasoned and non-frivolous
arguments.” DeBardeleben v. Quinlan, 937 F.2');">2d
502');">2, 505 (10th Cir. 1991).
Court concludes the application Plaintiff filed does not meet
the first part of the test in its present form. As a
threshold issue, Plaintiff's husband, Fernando Baca,
executed the “affidavit in support of the
application” to proceed without prepayment. [Doc. 2');">2, p.
1]. In so doing, he swore and affirmed under penalty of
perjury that he is “a plaintiff or petitioner in this
case.” [Doc. 2');">2, p. 1]. Mr. Baca, however, is not a
named party in this matter. Although he may have an interest
in the litigation, his is not a proper substitute for
Plaintiff's signature. See Fed. R. Civ. p. 11(a)
(requiring pro se parties personally to
sign papers submitted to the Court).
Mr. Baca could file the application on behalf of Plaintiff,
this document, AO Form 2');">239, does not evidence an inability to
pay. Mr. Baca recites that his average monthly
income over the past year was either $10, 000 or $70, 000.
[Doc. 2');">2, p. 1]. Using either sum, Plaintiff would be unable
to avoid prepayment of the filing fee. Perhaps Mr. Baca meant
to list annual household earnings, but he later indicates he
expects to earn $3, 000 in gross pay next month, which does
not equal either $10, 000 or $70, 000 in yearly income. [Doc.
2');">2, p. 1]. In addition, there is no clear calculation
comparing monthly expenses to monthly income where provided
for in the worksheet. [Doc. 2');">2, p. 2');">2 (listing
“$0.00” as “Total Monthly Income”)].
Elsewhere in the application, Mr. Baca reports owning real
property with equity. [Doc. 2');">2, p. 2');">2]. Ultimately, it appears
to the Court that Plaintiff misunderstood the requirements of
the form and made scriveners errors that prevent the Court
from fully understanding Plaintiff's financial picture.
As a result, the Court would like Plaintiff to submit an
application with her own signature together with
complete and correct calculations.
THEREFORE, ORDERED that Plaintiff's application to
proceed in forma pauperis is DENIED WITHOUT
PREJUDICE. Plaintiff may submit a new application that she
signs and that correctly calculates her ...