Herlickman v. Saul ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Barry Lee HERLICKMAN, Case No.: 19-cv-2446-AGS 11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA 12 v. PAUPERIS (ECF No. 2), DISMISSING 13 Andrew M. SAUL, THE COMPLAINT WITHOUT PREJUDICE, AND CLOSING THE 14 Defendant. CASE, WITH LEAVE TO AMEND 15 16 Plaintiff moves to proceed in forma pauperis (IFP). While plaintiff qualifies to 17 proceed without paying the initial filing fee, her complaint fails to state a claim for relief. 18 So, the Court grants plaintiff’s IFP motion but dismisses the complaint without prejudice. 19 Motion to Proceed In Forma Pauperis 20 Typically, parties instituting a civil action in a United States district court must pay 21 a $400 filing fee. See 28 U.S.C. §§ 1914(a), 1915. But if granted the right to proceed IFP, 22 a plaintiff can proceed without paying the fee. Rodriguez v. Cook, 169 F.3d 1176, 1177 23 (9th Cir. 1999). 24 Here plaintiff does not provide bank account information, but lists household living 25 expenses as $1,975 and household income as $1,300. (ECF No. 3, at 2, 4.) All of plaintiff’s 26 income is from social security benefits, and he is not currently employed. (Id. at 2.) Plaintiff 27 owns one car with no value and has no cash on hand. (Id. at 2-3.) In light of the foregoing, 28 the Court finds that plaintiff has sufficiently shown an inability to pay the initial $400 fee. 1 28 U.S.C. § 1915(e) Screening 2 When reviewing an IFP motion, the court must screen the complaint and dismiss it 3 if it is frivolous, malicious, fails to state a claim, or seeks monetary relief from a defendant 4 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 5 (9th Cir. 2000). In the Social Security context, a plaintiff’s complaint must set forth 6 sufficient facts to support the legal conclusion that the Commissioner’s decision was 7 incorrect. “[T]o survive the Court’s § 1915(e) screening,” a plaintiff must (1) “establish 8 that she has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that 9 the civil action was commenced within sixty days after notice of a final decision,” 10 (2) “indicate the judicial district in which the plaintiff resides,” (3) “state the nature of 11 plaintiff’s disability and when the plaintiff claims she became disabled,” and (4) “identify[] 12 the nature of the plaintiff’s disagreement with the determination made by the Social 13 Security Administration and show that plaintiff is entitled to relief.” Varao v. Berryhill, 14 No. 17-cv-02463-LAB-JLB, 2018 WL 4373697, at *2 (S.D. Cal. Jan. 31, 2018) (alteration 15 and citation omitted). 16 Plaintiff’s complaint fails to state a claim. Plaintiff’s allegations meet the first and 17 second requirements, but the complaint is silent as to the nature of her disability, the date 18 on which she allegedly became disabled, and her disagreement with the Social Security 19 Administration’s determination. (See ECF No. 1, at 1-3.) While plaintiff’s complaint 20 contains some boiler-plate language (see id.), there is not enough detail to allow the Court 21 to determine what her specific disagreements with the Social Security Administration 22 really are. Although surviving § 1915(e) is a “low threshold,” plaintiff is still required to 23 plausibly allege that she is disabled by identifying her purported disability and suggesting 24 why she is entitled to relief. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see 25 also Lenz v. Colvin, No. 16-cv-1755-JLS (PCL), 2016 WL 5682557, at *2 (S.D. Cal. Oct. 3, 26 2016) (“In social security appeals, a complaint challenging the denial of benefits ‘must 27 provide a statement identifying the basis of the plaintiff’s disagreement with the Social 28 1 Security Administration’s determination and must make a showing that the plaintiff is 2 || entitled to relief.’” (citation omitted)). 3 Conclusion 4 For the reasons set forth above, the Court grants plaintiff IFP status and waives the 5 || filing fee. But the complaint fails to state a claim and thus is dismissed without prejudice 6 under § 1915(e). The Clerk is directed to close the case. Plaintiff may automatically reopen 7 case by submitting an amended complaint by January 31, 2020. 8 ||Dated: December 30, 2020 9 — 10 Hon. ndrew G. Schopler United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28