1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYRA LYNN VIRGIL, Case No.: 19cv2111-NLS

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS; 14 Commissioner of the Social Security

Administration, 15 [ECF No. 7] Defendant. 16

17 18 19 Before the Court is Plaintiff Myra Lynn Virgil’s amended complaint seeking 20 judicial review of the Social Security Administration’s decision and accompanying 21 motion for leave to proceed in forma pauperis (“IFP”). ECF Nos. 6-7. After due 22 consideration and for the reasons set forth below, the Court GRANTS the motion to 23 proceed IFP. 24 I. Motion to Proceed In Forma Pauperis 25 A complaint filed pursuant to the IFP provisions of

(a), is subject 26 to a mandatory and sua sponte review by the Court. Lopez v. Smith,

, 1127 27 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails 28 to state a claim upon which relief may be granted, or seeks monetary relief from a 1 defendant immune from such relief.

(e)(2)(B). “A complaint appealing 2 the Commissioner’s denial of disability benefits must set forth a brief statement of facts 3 setting forth the reasons why the Commissioner’s decision was wrong.” Hoagland v. 4 Astrue, No. 1:12cv00973-SMS,

, at *1 (E.D. Cal. June 28, 2012). 5 The Court previously dismissed Plaintiff’s first complaint for failing to meet these 6 pleading requirements. See ECF Nos. 1, 5. Plaintiff’s amended complaint provides more 7 information, specifically that she complains that the ALJ failed to find her headaches and 8 depression to be severe impairments and erred by adopting the opinion of the consultative 9 examiner, which conflicted with other opinions in the record and his own narrative. ECF 10 No. 6 at ¶ 7. The Court finds that the amended complaint, on its face, appears to include 11 a brief statement about why the commissioner was wrong. 12 Having found that Plaintiff’s complaint survives screening, the Court turns to her 13 ability to proceed without payment of the required fees. It is well-settled that a party 14 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & 15 Co.,

(1948). The determination of indigency falls within the 16 district court’s discretion. See Cal. Men’s Colony v. Rowland,

(9th 17 Cir. 1991) (noting “Section 1915 typically requires the reviewing court to exercise its 18 sound discretion in determining whether the affiant has satisfied the statute’s requirement 19 of indigency”), rev’d on other grounds,

(1993). “An affidavit in support of 20 an IFP application is sufficient where it alleges that the affiant cannot pay the court costs 21 and still afford the necessities of life.” Escobedo v. Applebees,

(9th 22 Cir. 2015) (citing Adkins,

). At the same time, however, “the same even- 23 handed care must be employed to assure that federal funds are not squandered to 24 underwrite, at public expense . . . the remonstrances of a suitor who is financially able, in 25 whole or in material part, to pull his own oar.” Temple v. Ellerthorpe,

, 26 850 (D.R.I. 1984). Finally, the facts as to the litigant’s indigency must be stated “with 27 some particularity, definiteness and certainty.” United States v. McQuade,

, 28 940 (9th Cir. 1981). 1 Here, Plaintiff states that she does not have a job and has not had any income of 2 her own for the last year. ECF No. 7 at 1. She states that her only source of income 3 comes from public assistance and food stamps in the amount of $644 per month. Id. at 2. 4 The only asset she claims is a 2008 Toyota Yaris, with a value of $1750. Id. at 3. She 5 claims that her rent, utilities, food, and other expenses total $643 per month. Id. at 4-5. 6 Upon review of Plaintiff’s IFP application, the Court finds that Plaintiff has sufficiently 7 shown that she is unable to pay the fees associated with commencing this lawsuit. 8 Therefore, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis. 9 II. Conclusion 10 Accordingly, for the reasons as set forth above, the Court GRANTS Plaintiff’s motion 11 to proceed in forma pauperis and ORDERS as follows: 12 1. The Clerk shall issue a summons as to Plaintiff’s Amended Complaint (ECF No. 6) 13 upon Defendant and shall forward it to Plaintiff along with a blank U.S. Marshal 14 Form 285. In addition, the Clerk shall provide Plaintiff with a certified copy of 15 this Order and a certified copy of her Complaint and the summons. Upon receipt 16 of this “IFP Package,” Plaintiff is directed to complete the Form 285 as completely 17 and accurately as possible, and to return it to the U.S. Marshal according to the 18 instructions provided by the Clerk in the letter accompanying her IFP package. 19 Upon receipt, the U.S. Marshal shall serve a copy of the complaint and summons 20 upon Defendant as directed by Plaintiff on the form. All costs of service shall be 21 advanced by the United States. See

(d); Fed. R. Civ. P. 4(c)(3). 22 2. Defendant shall reply to the complaint within the time provided by the applicable 23 provisions of Federal Rule of Civil Procedure 12(a) and consistent with Civil Local 24 Rule 7.1(e)(6). 25 3. Plaintiff shall serve upon Defendant or, if appearance has been entered by counsel, 26 upon Defendant’s counsel, a copy of every further pleading or other document 27 submitted for consideration of the Court. Plaintiff shall include with the original 28 paper to be filed with the Clerk of the Court a certificate stating the manner in 1 which a true and correct copy of any document was served on the Defendant or 2 counsel of Defendant and the date of service. 3 IT IS SO ORDERED. 4 ||Dated: November 12, 2019 5 Mite. Lemme 6 Hon. Nita L. Stormes United States Magistrate Judge

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