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4 . 5 6 7 . 8 UNITED STATES DISTRICT COURT □ SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} DEBORA A.M., - Case No.: 3:21-cv-01872-RBM 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 || V- REQUEST TO PROCEED IN 14 || KILOLO KIJAKAZI, ACTING FO PAUPERIS 15 COMMISSIONER OF SOCIAL SECURITY, . 16 Defendant. . 17 [Doe. 3] 18 19 I. INTRODUCTION 20 On November 4, 2021, Plaintiff Debora A.M. (“Plaintiff”) filed a Complaint under

(g) seeking judicial review of the Commissioner of the Social Security 22 || Administration’s (“Defendant” or “Commissioner”) denial of disability insurance benefits 23 |i under Title II of the Social Security Act (“the Act”).! (Doc. 1.) Plaintiff did not pay the 24 25 26 The Complaint also references Plaintiff's application for supplemental security income 27 ||under Title XVI; however, the plain language of the Complaint invokes the Court’s jurisdiction under

(g). (Doc. 1 at 1-2, 793, 6.) Thus, it appears Plaintiff is not appealing the supplemental security income decision.

1 ||required filing fee and instead filed a motion to proceed in forma pauperis (“IFP Motion”). 2 ||(Doc. 3.) . 3 On April 8, 2020, former Chief Judge Larry A. Burns issued an order staying civil 4 || cases arising under

(g) that were filed on or after March 1, 2020, due to the 5 || ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 6 ||in 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 || lifts the stay of this case for the limited of purpose of ruling on the IFP Motion which will 9 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 |) the Commissioner begins normal operations at the Office of Appellate Hearings Operations 12 resumes preparation of Certified Administrative Records. See Or. of Chief Judge No. 13 at sec. 6. . 14 Having reviewed the Complaint and IFP Motion, the undersigned GRANTS ‘15 || Plaintiff's IFP Motion and further finds Plaintiffs Complaint is sufficient to survive a sua 16 || sponte screening. 17 Il. DISCUSSION 18 A. Application to Proceed IFP All parties instituting a civil action in a district court of the United States, except an 20 application for a writ of habeas corpus, must pay a filing fee.

(a). Buta 21 litigant who, because of indigency, is unable to pay the required fees or security may 22 || petition the Court to proceed without making such payment.

(a)(1). The 23 || facts of an affidavit of poverty must be stated with some particularity, definiteness, and 24 ||certainty. Escobedo v. Applebees,

(9th Cir. 2015) (citing United 25 || States v. McQuade,

(9th Cir. 1984)). 26 The determination of indigency falls within the district court’s discretion. Rowland 27 || v. Cal. Men’s Colony,

(9th Cir. 1991), rev'd on other grounds,

(1993). It is well-settled that a party need not be completely destitute to proceed in

1 forma pauperis. Adkins v. EI. DuPonte de Nemours & Co.,

(1948); 2 ||see also Escobedo,

. To satisfy the requirements of

1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of 4 ||his poverty pay or give security for costs .. . and still be able to provide[ ] himself and 5 ||dependents with the necessities of life.” Adkins,

(internal quotations 6 ||omitted). Nevertheless, “the same even-handed care must be employed to assure that 7 || federal funds are not squandered to underwrite, at public expense, ... the remonstrances 8 || of a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 9 Ellerthorpe,

(D. R.I. 1984) (internal citation omitted). Courts 10 to reject IFP motions where the applicant can pay the filing fee with acceptable 11 || sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW,

, ‘12 **2-3 (N.D. Cal. June 29, 1995) (plaintiff initially permitted to proceed IFP, but later 13 ||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, her 16 ||spouse’s monthly income totals $3,200. (Doc. 3 at 1.) Plaintiff's monthly expenses total 17 $5,100, which include $1,500 in “space rent,” $200 in utilities, $1,000 for motor vehicle 18 || payments and insurance, $300 in gasoline, $300 in food, $1,600 in “bal[ance] on credit 19 || card[,]” and $200 in home loan payments. (/d.) The couple’s monthly household expenses 20 || exceed their monthly income by $1,900. (/d.) Plaintiff has $120 in her checking account 21 |{and $25 in her savings account. (/d. at 2.) The only valuable property Plaintiff and her 22 spouse own are a home valued at $50,000 and two vehicles, a 2017 Chevrolet truck valued 23 |/at $40,000, with an. owed balance of $30,000, and a 2016 Chevrolet Spark valued at 24 $10,000. Ud.) 25 Even if the $1,600 in credit card debt is eliminated, it is clear Plaintiff would still be 26 || unable to pay the filing fee without sacrificing other necessary expenses. (Doc. 3 at 1); see 27 |\also Allen,

, at **2—3. Plaintiff's affidavit sufficiently demonstrates an 28 || inability to pay the required $400 filing fee without sacrificing the necessities of life. See

1 || Adkins,

. The undersigned concludes Plaintiff cannot afford to pay 2 |jany filing fees at this time for this action. Accordingly, Plaintiff's IFP Motion is 3 || GRANTED. 4 B. Sua Sponte Screening . 5 Pursuant to

(a), a complaint filed by any person proceeding IFP is 6 ||also subject to a mandatory sua sponte screening. The Court must review and dismiss any 7 ||complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 8 from a defendant who is immune.

(e)(2); see also Lopez v. Smith, 203

(9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 10 || WL1258846, at *3.(S.D. Cal. Mar. 19, 2019). 11 To survive, complaints must contain “a short and plain statement of the claim 12 showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “[T]he pleading 13 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 14 ||more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 15 || Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

, 555 16 ||(2007)). And “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft,

. Instead, plaintiff must 18 || state a claim plausible on its face, meaning “plaintiff pleads factual content that allows the 19 |)court to draw the reasonable inference that the defendant is liable for the misconduct 20 |jalleged.” Jd. at 678: “When there are well-pleaded factual allegations, a court should 21 || assume their veracity and then determine whether they plausibly give rise to an entitlement 22 relief.”

. 23 Social security appeals are not exempt from the general screening requirements for 24 ||IFP cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK,

, at *2 (D. Nev. 25 ||Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS,

, at *1 26 ||(E.D. Cal. June 28, 2012)). : 27 In social security appeals, courts within the Ninth Circuit have established four 28 ||requirements necessary for a complaint to survive a sua sponte screening: □ .

. □

_ First, the plaintiff must establish that she had exhausted her administrative remedies pursuant to

(g), and that the civil action was 3 commenced within sixty days after notice of a final decision. Second, the 4 || complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiffs disability and when 5 the plaintiff claims she became disabled. Fourth, the complaint must contain 6 a plain, short, and concise statement identifying the nature of the plaintiff's disagreement with the determination made by the Social Security 7 Administration and show that the plaintiff is entitled to relief. 8 . 9 || Skylar v. Saul, 19-cv-1581-NLS,

, at *1 (S.D. Cal. Aug. 27, 2019) 10 ||(quoting Montoya,

, at *2). As to requirement four, a complaint is 11 || insufficient if it merely alleges the Commissioner was wrong in denying plaintiff benefits. 12 || See Skylar,

, at *1; see also Hoagland,

, at *3. 13 || Instead, a complaint “must set forth a brief statement of facts setting forth the reasons why 14 ||the Commissioner’s decision was wrong.” Skylar,

, at *1. 15 As to the first requirement, the Complaint contains sufficient allegations that 16 || Plaintiff exhausted their administrative remedies. (Doc. 1 at 2-3.) Plaintiff filed an 17 ||application for a period of disability, disability insurance benefits, and supplemental 18 || security income benefits on September 11, 2019, which the Commissioner denied initially 19 ||and upon reconsideration. (/d. at 2, | 6.) An administrative law judge (“ALJ”) held a 20 || hearing and issued a decision denying Plaintiffs claim for benefits on April 29, 2021. (Id. 21 2,97.) Additionally, Plaintiff sought review with the Appeals Council; however, the 22 || Appeals Council denied the request for review on October 14, 2021. Ud. at 3,949.) This 23 became the Commissioner’s final decision. (/d.) Plaintiff timely filed the Complaint 24 || within sixty days of the Commissioner’s final decision. See

(c). As to 25 ||the second requirement, the Complaint states Plaintiff resides “within the jurisdictional 26 || boundaries of this Court at El Cajon, CA.” (Doc. | at 1,41.) As to the third requirement, 27 || Plaintiff alleges he “is, and at all times relevant to this action, disabled as that term is 28 || defined in the Social Security Act.” (Ud. at 2,95.) Finally, Plaintiff contends the Court

1 || should reverse or remand the Commissioner’s final decision on several grounds, including 2 ||that the ALJ did not property weigh medical evidence indicating that Plaintiff had more 3 || limitations as expressed by examining physicians. (/d. at 3, { 8(a)-(d).) Based upon the 4 || foregoing, the undersigned finds the Complaint establishes the four requirements necessary 5 || to survive sua sponte screening. 6 || However, the Court notes Plaintiff's counsel has filed several complaints in other _7 ||social security appeals that contain language nearly verbatim to the instant Complaint’s 8 || paragraph five. (Ud. at 95.) While paragraph five of the instant Complaint alleges Plaintiff 9 ||is disabled and he has been disabled at all relevant times to this action, this boilerplate 10 || language barely meets the third screening requirement. Skylar,

, at *1. 11 ||This Court has recently issued an order discouraging Plaintiff's counsel against filing 12 || pleadings with such boilerplate language. Nacimo A. v. Saul, 20-cv-1780-RBM, Doc. 6 at 13 (S.D. Cal. Sept. 25, 2020) (highlighting paragraph five’s boilerplate language in 14 ||complaint but nevertheless finding complaint sufficient to survive a sua sponte screening). 15 || While the complaints in other cases have survived a sua sponte screening, the Court 16 cautions Plaintiff's counsel that such boilerplate filings are discouraged. See Kevin C. v. 17 Saul, 20-cv-463-RBM, Doc. 9 (S.D. Cal. Sept. 2, 2020) (finding complaint sufficient to 18 survive a sua sponte screening); see also Mark G. v. Saul, 20-cv-917-WVG, Doc. 5 (S.D. 19 May 18, 2020) (stating “the Court finds Plaintiff has sufficiently (though barely) 20 || satisfied the minimal pleading standards above by stating specific points of error assigned 21 ||by the ALJ.”); Robert D. v. Saul, 20-cv-639-MDD, Doc. 6 (S.D. Cal. June 15, 2020) 22 ||(finding complaint not subject to sua sponte dismissal); Maria R. v. Saul, 20-cv-1236- 23 || MMA-JLB, Doc. 6 (S.D. Cal. July 23, 2020) (finding complaint not subject to sua sponte 24 dismissal); but see Maria V. y. Saul, 20-cv-586-JLB, Doc. 6 (S.D. Cal. May 6, 2020) 25 || (dismissing complaint without prejudice finding complaint “merely parrots the standard of 26 || judicial review” and “devoid of the [ALJ’s] findings and the specific reasons plaintiff 27 ||contends the ALJ erred.”’). 28

1 Hl. CONCLUSION 2 _ Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiffs IFP Motion is GRANTED. oe 4 2. The Clerk of Court is DIRECTED to issue a summons as to □□□□□□□□□□□ 5 ||complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the 6 ||named Defendant. In addition, the Clerk of Court is DIRECTED to provide Plaintiff with 7 ||certified copies of this Order and the Complaint. 8 3. Upon receipt of these materials, Plaintiff is DIRECTED to complete Form 9 ||285 and forward the materials to the United States Marshals Service. 10 4. Upon receipt, the United States Marshals Service is ORDERED to serve.a 11 || copy of the Complaint and summons upon Defendant as directed by Plaintiff on Form 285. 12 || The United States will advance all costs of service. See

(d); FED. R. Cv. 13 ||P. 4(c)G). 14 5. After service is complete, the Court will stay the case again and the stay will 15 || automatically lift after Defendant files the Certified Administrative Record. 16 IT IS SO ORDERED. 17 ||Dated: January 28, 2022 . 18 i ap Bnd or □□□ ) 19 HON. RUTH BERMUDEZ MONTENEGRO 0 UNITED STATES MAGISTRATE JUDGE 21 oe

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