Cruz v. Kijakazi

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA Case No.: 20cv1591-BLM MARIA D. CRUZ, 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS ANDREW SAUL, Commissioner of Social Security, 15 [ECF NO. 3] Defendant.

18 The instant matter was initiated on August 17, 2020 when Plaintiff filed a complaint “to seek judicial review of the Commissioner’s decision and [to] request[] that this court reverse that decision, or in the alternative, to remand this matter for a new hearing on the following grounds.” ECF No. 1 at 2. That same day, Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs. ECF No. 3. Having reviewed the complaint and motion, the Court GRANTS Plaintiff’s motion to proceed (“IFP”) and finds that Plaintiff’s complaint is sufficient to survive screening.

25 Application to Proceed in District Court without Prepaying Fees or Costs 26 All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: [A]ny court of the United States may authorize the commencement, prosecution 3 or defense of any suit, action or proceeding ... without prepayment of fees or 4 security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

7 The determination of indigency falls within the district court's discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 9 194 (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.”). It is well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which 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.” Id. at 339. At the same time, “the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, ... 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). District courts tend to reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee).

24 Moreover, 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).

26 Plaintiff has satisfied her burden of demonstrating that she is entitled to IFP status.

27 Plaintiff’s total monthly income is $0 and she has not been employed for at least the last two from Cal Works and $233 a month in food stamps. Id. at 2. Plaintiff also states that her spouse earns $10.50 per hour working in in-home supportive services and that she and her spouse have $47 in their bank account. Id. Plaintiff states that she owns a 2007 Toyota Camry valued at $5,000. Id. at 3. Plaintiff also states that she has a thirteen-year-old daughter who relies on her and her husband for support. Id. In support of her application, Plaintiff further states that she has monthly expenses including $198 for rent or home-mortgage payments, $40 for utilities, $233 for food, $40 for laundry and dry-cleaning, $80 for gasoline for transportation, $77.23 for vehicle insurance, $28 for cell phone insurance, $19.90 for cable, $20 for credit card payments, and $143.02 for loan payments. Id. at 4. Based on the information provided, the Court finds that Plaintiff is unable to pay the required filing fee. Accordingly, Plaintiff’s motion to proceed in forma pauperis is GRANTED.

12 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 13 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar.

16 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 19 1126–27.

20 To survive, all complaints must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, “recitals of elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the pleaded factual content allows the court to draw the reasonable inference that the defendant is at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 5 Mar. 8, 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)).

6 In the context of a social security appeal, courts within the Ninth District have established four elements necessary for a complaint to survive a screening: First, the plaintiff must establish that she has exhausted her administrative 9 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 10 within sixty days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiff's disability and when the plaintiff claims she became 12 disabled. Fourth, the complaint must contain a plain, short, and concise statement 13 identifying the nature of the plaintiff's disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief.

15 Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL 16 890922 at *2). With regard to element four, a complaint is insufficient if it merely states that the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012 18 WL 2521753 at *3 (“Every plaintiff appealing an adverse decision of the Commissioner believes that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead, the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the Commissioner’s decision was wrong.” Id. at *2.

23 After reviewing the complaint, the Court finds that Plaintiff has established all four elements necessary for a complaint to survive screening. Plaintiff states that she resides “within the jurisdictional boundaries of this Court at Imperial Beach, CA.” ECF No. 1 at 1. Plaintiff also states that she “timely requested and participated in a hearing before an” Administrative Law Judge (“ALJ”) who “issued a decision denying [P]laintiff’s claim for benefits.”

1 || for review” of the ALJ's decision, making the ALJ decision the final decision of the Commissioner || of Social Security. Id. Plaintiff alleges “[t]here is no substantial medical or vocational evidence” |}to support the ALJ’s conclusions; “[t]here is no substantial evidence . . . to support the || Commissioner's finding that plaintiff could perform any substantial gainful activity;” the evidence ||can only support a finding of disability; and that “[n]ew and material evidence for which good || cause exists for failure to submit earlier exists and warrants a remand.” Id. at 2-3. Furthermore, || Plaintiff clearly states her disagreement with the ALJ's determination by arguing that there “is || substantial medical evidence in the record to support that [Plaintiff] suffers from” debilitating || migraines and advanced fibromyalgia and that she has vertigo which causes her to have “trouble || walking such that she requires assistance with ambulation.” Id. Additionally, Plaintiff states 11 there is “substantial evidence in the record to support the notion that as a result of the ||combination of [Plaintiff's] severe physical impairments, [Plaintiff] is unable to carry out 13 substantial gainful activity at any level.” Id. at 3.

14 In light of the Court’s rulings, IT IS FURTHER ORDERED: 15 1. The United States Marshal shall serve a copy of the Complaint filed on August 17, 16 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. Marshal ||Form 285. All costs of service shall be advanced by the United States.

18 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by counsel, 19 Defendant's counsel, a copy of every further pleading or document submitted for || consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk || of Court a certificate stating the manner in which a true and correct copy of any document was ||served on Defendant or Defendant's counsel and the date of service. Any paper received by a || District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include || a Certificate of Service will be disregarded.

25 IT IS SO ORDERED.

26 ||Dated: 9/1/2020 lobe Mager 27 Hon. Barbara L. Major United States Maaistrate Judae