Swanger v. Kijakazi

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8 UNITED STATES DISTRICT COURT | 9 . SOUTHERN DISTRICT OF CALIFORNIA .

11 || CLINTON S., Case No.: 3:21-cv-01359-RBM 12 Plaintiff, ORDER GRANTING PLAINTIFF’S || V. APPLICATION TO PROCEED IN || KILOLO KIVAKAZI, ACTING PREP AVING PENS ORK ers 15 COMMISSIONER OF SOCIAL - || SECURITY, 16 Defendant.

17 [Doc. 2] 19° I. INTRODUCTION 20 On July 28, 2021, Plaintiff Clinton S. (“Plaintiff”) filed a Complaint under 42 U.S.C. ||§ 405(g) seeking judicial review of the Commissioner of the Social Security || Administration’s (“Defendant” or “Commissioner’”) denial of disability insurance benefits |) under Title II of the Social Security Act (“the Act”).' (Doc. 1.) Plaintiff did not pay the 26 Complaint also references Plaintiff's application for supplemental security income under || Title XVI; however, the plain language of the Complaint invokes the Court’s jurisdiction under 42 U.S.C. § 405(g). (Doc. 1 at 1-2, 9 3, 6.) Thus, it appears Plaintiff is not appealing the supplemental security income decision. ] ||required filing fee and instead filed a motion to proceed in forma pauperis (“IFP Motion”).

2 ||(Doc. 2.)

3 On April 8, 2020, former Chief Judge Larry A. Burns issued an order staying civil || cases arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the || ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 6 part “all civil cases filed on or after March 1, 2020 brought against the Commissioner .

7 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). At this time, the Court 8 the stay of this case for the limited of purpose of ruling on the IFP Motion which will || allow Plaintiff to proceed with effectuating service of the summons and Complaint to 10 Defendant. Once service is complete, the Court will stay the case again until such time as 11 Commissioner begins normal operations at the Office of Appellate Hearings Operations 12 resumes preparation of Certified Administrative Records. See Or. of Chief Judge No. ||21 at sec. 6.

14 Having reviewed the Complaint and IFP Motion, the undersigned GRANTS || Plaintiff's IFP Motion and further finds Plaintif?’s Complaint is sufficient to survive a sua sponte screening.

17 IL DISCUSSION 18 A. Ap plication to Proceed IFP 19 All parties instituting a civil action 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. § 1914(a). Buta || litigant who, because of indigency, is unable to pay the required fees or security may || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The || facts of an affidavit of poverty must be stated with some particularity, definiteness, and || certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing United || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)).

26 The determination of indigency falls within the district court’s discretion. Rowland 27 Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 28 || 194 (1993). It is well-settled that a party need not be completely destitute to proceed in 5 □ || forma pauperis. Adkins v. EL. DuPonte de Nemours & Co., 335 U.S. 331, 339—40 (1948); |see also Escobedo, 787 F.3d at 1235. To satisfy the requirements of 28 U.S.C. § 3. || 1915(a)(1), “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[ Jhimself and ||dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations omitted). Nevertheless, “the same even-handed care must be employed to assure that || federal funds are not squandered to underwrite, at public expense, . . . the remonstrances || ofa suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 9 Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). Courts 10 to reject IFP motions where the applicant can pay the filing fee with acceptable || sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 12 **2—-3 (N.D. Cal. June 29, 1995) (plaintiff initially permitted to proceed IFP, but later required to pay $120 filing fee out of $900 settlement proceeds).

14 Here, Plaintiff sufficiently demonstrates entitlement to IFP status. According to the 15 affidavit, Plaintiff's monthly income for the past twelve months totals $0; however, his |/spouse’s monthly income totals $2,359, which is comprised of $935 in food stamps and ||$1,424 in general relief.? (Doc. 2 at 1.) Plaintiffs monthly expenses total $1.50 for life || insurance; however, his spouse ’s monthly expenses total $4,319, which include $1,395 in 19 $115 in utilities, $1,000 in food, $200 in clothing, $100 in laundry, $600 in gasoline, 20 $209 for motor vehicle insurance, $200 for cellphone(s), $300 in credit card bills, and $200 || for cable/internet. (Id. at 4-5.) The couple’s monthly household expenses exceed their ||monthly income by $1,960. (Id.) Plaintiff explains, “I know the expenses are more than ||the income. We use credit cards each month to help get through.” (/d. at 5.) Additionally, || Plaintiff and his spouse have four children, ages two, four, seven, and eleven. (/d. at 3.)

26 |l2 General relief is a type of temporary cash assistance for eligible county residents who |\have no other means of support. See Health & Human Services Agency, General Relief, https://www.sandiegocounty.gov/content/sdc/hhsa/programs/ssp/general_relief.htmlounty .gov) (last visited Aug. 10, 2021). □ || Plaintiff has $0 in his checking account while his spouse has $2 in a checking account. (Id. 2 2.) The only valuable property Plaintiff and his spouse own are two vehicles, a 2004 || Dodge Durango and a 2015 Chrysler Town and County (i.e. minivan), collectively valued 4 $9,500. (Id. at 3.)

5 Although $600 in gasoline is substantially high, it is clear Plaintiff would still be || unable to pay the filing fee after reducing this expense. (Doc. 2 at 4.); see also Allen, 1995 || WL 396860, at **2—3. Plaintiff's affidavit sufficiently demonstrates an inability to pay the required $400 filing fee without sacrificing the necessities of life. See Adkins, 335 U.S. at 9 11339-340. The undersigned concludes Plaintiff cannot afford to pay any filing fees at this |/time for this action. Accordingly, Plaintiff?s IFP Motion is GRANTED.

11 B. Sua Sponte Screening 12 Pursuant to 28 U.S.C. 3 1915(a), a complaint filed by any person proceeding IFP is || also subject to a mandatory sua sponte screening. The Court must review and dismiss any complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 15 from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 || F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 || WL1258846, at *3 (S.D. Cal. Mar. 19, 2019). _ 18 To survive, complaints must contain “a short and plain statement of the claim || showing that the pleader is entitled to relief.” FED. R. Ci. P. 8(a)(2). “[T]he pleading 20 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 ||(2007)). And “[t]hreadbare recitals of elements of a cause of action, supported by mere .24 || conclusory statements do not suffice.” Iqbal, 556 U.S. at 663. Instead, plaintiff must state 25 claim plausible on its face, meaning “plaintiff pleads factual content that allows the court ||to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

27 \\Id. at 678. “When there are well-pleaded factual allegations, a court should assume their 4 oe || veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

2 |\Id. at 679. .

3 Social security appeals are not exempt from the general screening requirements for ||IFP cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. 5 Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *1 ||(E.D. Cal. June 28, 2012)).

7 In social security appeals, courts within the Ninth Circuit have established four ||requirements necessary for a complaint to survive a sua sponte screening: 9 □ 10 First, the plaintiff must establish that she had exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty 11 days after notice ofa final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiffs disability and when the plaintiff claims she became disabled. Fourth, 13 the complaint must contain a plain, short, and concise statement identifying the 14 nature of the plaintiffs disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief.

16 || Skylar v. Saul, 19-cv-1581-NLS, 2019 WL 4039650, at *1 (S.D. Cal. Aug. 27, 2019) ||(quoting Montoya, 2016 WL 890922, at *2). As to requirement four, a complaint is || insufficient if it merely alleges the Commissioner was wrong in denying plaintiff benefits.

19 Skylar, 2019 WL 4039650, at *1; see also Hoagland, 2012 WL 2521753, at *3.

20 || Instead, a complaint “must set forth a brief statement of facts setting forth the reasons why 21 Commissioner’s decision was wrong.” Skylar, 2019 WL 4039650, at *2.

22 As to the first requirement, the Complaint contains sufficient allegations that || Plaintiff exhausted his administrative remedies. (Doc. 1 at 2-4.) Plaintiff filed concurrent 24 applications for disability insurance benefits and supplemental security income on March 25 2019, which the Commissioner denied initially and upon reconsideration. (/d. at 2, 6.)

26 ||An administrative law judge (“ALJ”) held a.hearing and issued a decision denying 27 Plaintiff's claim for benefits on December 17, 2020. (Id. at 2,97.) Additionally, Plaintiff || sought review with the Appeals Council; however, the Appeals Council denied the request || for review on June 8, 2021. (Ud. at 4,99.) This became the Commissioner’s final decision.

2 ||Ud.) Plaintiff timely filed the Complaint within sixty days of the Commissioner’s final || decision. See 42 U.S.C. § 1383(c). As to the second requirement, the Complaint states || Plaintiff resides “within the jurisdictional boundaries of this Court in Oceanside, CA.”

5 ||(Doc. 1 at 1, 1.) As to the third requirement, Plaintiff alleges he “is, and at all times ||relevant to this action, disabled as that term is defined in the Social Security Act.” (/d. at ||2,95.) Finally, Plaintiff contends the Court should reverse or remand the Commissioner’s || final decision on several grounds, including that the ALJ did not property weigh medical || evidence from an orthopedic consultative examiner, his primary care physician, and state ||agency psychiatric consultants. (/d. at 3, q 8(a)-(e).) Based upon the foregoing, the |} undersigned finds the Complaint establishes the four requirements necessary to survive sua 12 sponte screening.

13 However, the Court notes Plaintiff's counsel has filed several complaints in other |/social security appeals that contain language nearly verbatim to the instant Complaint’s || paragraph five. (Id. at 75.) While paragraph five of the instant Complaint alleges Plaintiff ||is disabled and he has been disabled at all relevant times to this action, this boilerplate || language barely meets the third screening requirement. Skylar, 2019 WL 4039650, at *1.

18 || This Court has recently issued an order discouraging Plaintiff's counsel against filing || pleadings with such boilerplate language. Nacimo A. v. Saul, 20-cv-1780-RBM, Doc. 6 at 20 (S.D. Cal. Sept. 25, 2020) (highlighting paragraph five’s boilerplate language in ||complaint but nevertheless finding complaint sufficient to survive a sua sponte screening).

22 || While the complaints in other cases have survived a sua sponte screening, the Court 23 cautions Plaintiff's counsel that such boilerplate filings are discouraged. See Kevin C. v. || Saul, 20-cv-463-RBM, Doc. 9 (S.D. Cal. Sept. 2, 2020) (finding complaint sufficient to 25 survive a sua sponte screening); see also Mark G. v. Saul, 20-cv-917-WVG, Doc. 5 (S.D. ||Cal. May 18, 2020) (stating “the Court finds Plaintiff has sufficiently (though barely) || satisfied the minimal pleading standards above by stating specific points of error assigned ||by the ALJ.”); Robert D. v. Saul, 20-cv-639-MDD, Doc. 6 (S.D. Cal. June 15, 2020) ||(finding complaint not subject to sua sponte dismissal); Maria R. v. Saul, 20-cv-1236- || MMA-JLB, Doc. 6 (S.D. Cal. July 23, 2020) (finding complaint not subject to sua sponte dismissal); but see Maria V. v. Saul, 20-cv-586-JLB, Doc. 6 (S.D. Cal. May 6, 2020) || (dismissing complaint without prejudice finding complaint “merely parrots the standard of ||judicial review” and “devoid of the [ALJ’s] findings and the specific reasons plaintiff || contends the ALJ erred.”).

7 I. CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff's IFP Motion is GRANTED.

10 The Clerk of Court is DIRECTED to issue a summons as to Plaintiff's ||}complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the |}named Defendant. In addition, the Clerk of Court is DIRECTED to provide Plaintiff with 13 certified copies of this Order and the Complaint.

14 3. Upon receipt of these materials, Plaintiff is DIRECTED to complete Form □ ||285 and forward the materials to the United States Marshals Service.

16 4. Upon receipt, the United States Marshals Service is ORDERED to serve a 17 copy of the Complaint and summons upon Defendant as directed by Plaintiff on Form 285. - 18 || The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIv.

19 ||P. 4(c)(3).

20 5. After service is complete, the Court will stay the case again and the stay will || automatically lift after Defendant files the Certified Administrative Record.

22 IT IS SO ORDERED.

23 ||Dated: August 12, 2021 24 a □□ in ide Leulen au_) 25 □ HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE