Kirker v. Saul ( 2020 )

1 |}. . 3 5 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA □ 10 11 || OSCARK., Case No.: 3:20-cv-00673-LAB-RBM 2 _ ‘Plamtit | ORDER GRANTING PLAINTIFFS 13 || Vv. APPLICATION TO PROCEED IN 14 || ANDREW M. SAUL, COMMISSIONER | eee eee costs 15 OF SOCIAL SECURITY, 16 Defendant. 17 (Doe. 9] 18 19 I. INTRODUCTION 20 . On September 12, 2020, Plaintiff Oscar K. (“Plaintiff”) filed an amended complaint 21 under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the Commissioner of 97 Social Security Administration’s (“Defendant” or “Commissioner’) denial of disability 73 ||insurance benefits and'supplemental security income under Titles II and XVI of the Social 24 Security Act (“the Act”). (Doc. 8.) Plaintiff did not pay the required filing fee and instead 95 || filed an amended motion to proceed in forma pauperis (“IFP Motion”).' (Doc. 9.) 26 || ———________ | Plaintiff previously filed a complaint and motion to proceed in forma pauperis on April 7, 2020 (“Apri 27 ||7, 2020 IFP Motion”). (Docs. 1, 3.) On September 11, 2020, the undersigned issued a Report and 28 Recommendation (“R&R”), recommending that the initial complaint be dismissed with leave to amend and the April 7, 2020 IFP Motion be denied without prejudice. (Doc. 7.) On September 12, 2020, Plaintif ] 1 On April 8, 2020, Chief Judge Larry A. Burns issued an order staying civil cases 2 || arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the 3 ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 4 part “all civil cases filed on or after March 1, 2020 brought against the Commissioner . 5 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). Initially, the Court held _ 6 |lits ruling on the IFP Motion in abeyance pursuant to the Chief Judge Order. But, the 7 || COVID-19 pandemic has been ongoing for months and will continue for the foreseeable 8 future. At this time, the Court lifts the stay of this case for the limited of purpose of ruling 9 |lon the IFP Motion which will allow Plaintiff to proceed with effectuating service of the 10 ||summons and complaint to Defendant. Once service is complete, the undersigned will stay 11 the case again until such time as the Commissioner begins normal operations at the Office 12 Appellate Hearings Operations and resumes preparation of Certified Administrative 13 ||Records. See Or. of Chief Judge No. 21 at sec.6. □ 14 Having reviewed the complaint and IFP Motion, the Court finds that □□□□□□□□□□□ 15 ||complaint is sufficient to survive a sua sponte screening and further GRANTS □□□□□□□□□□□ 16 ||IFP Motion. 17 □ IL DISCUSSION 18 _ A. Sua Sponte Screening 19 _ Pursuant to 28 U.S.C. § 1915(a), a complaint filed by any person proceeding IFP is 20 || also subject to a mandatory sua sponte screening. The Court must review and dismiss any 21 |}complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 22 || from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 23 || F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 24 || WL1258846, at *3 (S.D. Cal. Mar. 19, 2019). . 25 26 27 || filed the instant amended complaint and amended IFP Motion. These September 12, 2020 filings rendered ng ||the pending R&R and April 7, 2020 IFP Motion moot. Therefore, the undersigned withdrew the September 11, 2020 R&R and accepted the instant IFP Motion in place of the April 7, 2020 IFP Motion. To survive, complaints must contain “a short and plain statement of the claim 2 ||showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “[T]he pleading 3 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 4 ||more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. 5 || Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 ||(2007)). And “[t]hreadbare recitals of elements of a cause of action, supported by mere 7 ||conclusory statements do not suffice.” Jd. Instead, plaintiff must state a claim plausible 8 |lon its face, meaning “plaintiff pleads factual content that. allows the court to draw the 9 |jreasonable inference that the defendant is liable for the misconduct alleged.” Igbal, 556 10 at 678 (quoting Twombly, 550 U.S. at 556). “When there are well-pleaded factual 11 |/allegations, a court should assume their veracity, and then determine whether they 12 || plausibly give rise to an entitlement to relief.” Id. at 679. 13 Social security appeals are not exempt from the general screening requirements for 14 ||IFP cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. 15 || Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *] 16 ||(E.D. Cal. June 28, 2012)). 17 || - In social security appeals, courts within the Ninth Circuit have established four 18 ||requirements necessary for a complaint to survive a’sua sponte screening: 19 | First, the plaintiff must establish that she had exhausted her administrative remedies 20 pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty days after notice of a final decision. Second, the complaint must indicate the judicial 21 district in which the plaintiff resides. Third, the complaint must state the nature of 2 the plaintiff s disability and when the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement identifying the — 23 nature of the plaintiffs disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 25 Skylar v. Saul, 19-cv-1581-NLS, 2019 WL 4039650, at *1 (S.D. Cal. Aug. 27, 2019) 26 (quoting Montoya, 2016 WL 890922, at *2). As to the fourth requirement, a complaint is 27 || insufficient if it merely alleges the Commissioner was wrong in denying plaintiff benefits. 28 ||See Skylar, 2019 WL 4039650, at *1; see also Hoagland, 2012 WL 2521753, at *3 1 ||Instead, a complaint “must set forth a brief statement of facts setting forth the reasons why 2 ||the Commissioner’s decision was wrong.” Skylar, 2019 WL 4039650, at *2. As to the first requirement, the complaint contains sufficient allegations that Plaintiff 4 |lexhausted his administrative remedies. Plaintiff filed an application for disability 5 ||insurance benefits which was subsequently denied. (See Doc. 8 at { 2.) This became the 6 ||Commissioner’s final administrative decision. (/d.) Plaintiff timely filed the complaint 7 || within sixty days of the Commissioner’s final decision. (/d.) As to the second requirement, 8 ||the complaint states Plaintiff “resides in San Diego, CA, within the jurisdiction of this 9 ||Court.” (Ud. at 94.) As to the third requirement, Plaintiff alleges he “is disabled due to a 10 ||combination of severe physical and mental impairments . . .” including ataxia, spasmodic 11 ||torticollis, depression, and pain. (/d. at {§ 6-7.) Plaintiff alleges his onset date of disability 12 October 1, 2010. (Ud. at ¥ 6.) Finally, Plaintiff alleges the Commissioner’s decision is 13 ||not supported by substantial evidence and contrary to law and regulation. (id. at {| 7.) 14 Specifically, Plaintiff alleges the Commissioner failed to address Plaintiffs ataxia, 15 || spasmodic torticollis, depression, pain, and failed to give weight to specialists and treating 16 ||doctors. Ud.) 17 Based upon all of the foregoing, the Court finds Plaintiff has established the four 18 requirements necessary to survive a sua sponte screening. 19 B. Application to Proceed IFP 20 All parties instituting a civil action in a district court of the United States, except an 21 |lapplication for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). But 22 || litigant who, because of indigency, is unable to pay the required fees or security may 23 || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 24 || facts of an affidavit of poverty must be stated with some particularity, definiteness, anc 25 |\certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing Unitec 26 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 27 The determination of indigency falls within the district court’s discretion. Rowlanc 28 || v. Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev ‘d on other grounds, 506 U.S 1 (1993). It is well-settled that a party need not be completely destitute to proceed in 2 forma pauperis. Adkins v. EI. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 (1948); 3 also Escobedo, 787 F.3d at 1235. To satisfy the requirements of 28 U.S.C. § 4 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of 5 poverty pay or give security for costs... and still be able to provide[ ] himself and 6 dependents with the necessities of life.” | Adkins, 335 US. at 339 (internal quotations 7 omitted). Nevertheless, “the same even-handed care must be employed to assure that 8 || federal funds are not squandered to underwrite, at public expense, . . . the remonstrances 9 || of a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 10 Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). Courts 11 to reject IFP motions where the applicant can pay the filing fee with acceptable 12 sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 13 **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IFP, but later 14 ||required to pay $120 filing fee out of $900 settlement proceeds). 15 Here, Plaintiff has sufficiently demonstrated his entitlement to IFP status. 16 || According to his affidavit, Plaintiff's monthly income is $190 from public assistance. 17 (Doc. 9 at 1-2.) Plaintiff has $107 in cash, no savings, $0 in monthly expenses, and he has 18 worked for the past two years. (Id. at 4-5.) Plaintiff did not list a spouse or any other 19 || persons relying on him for support. (/d. at 1-5.) He lives with his disabled mother. (/d. at 20 ||5.) He does not expect major changes to his monthly income or expenses during the next 21 ||twelve months. (/d.) Plaintiff alleges that his disability prevents him from working. Ud.) 22 Plaintiff’ s affidavit sufficiently demonstrated that he is unable to pay the required 23 $400 filing fee without sacrificing the necessities of life. See Adkins, 335 US. at 339-340. 24 || The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 25 || Accordingly, Plaintiff's IFP Motion is GRANTED. 26 . 27 28 . . □ 1 || Ill. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED: 3 |. Plaintiff's IFP Motion is GRANTED. 4 2. The Clerk of Court is DIRECTED to issue a summons as to Plaintiff's 5 |; Amended complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 6 ||for the named Defendant. In addition, the Clerk of Court is DIRECTED to provide 7 || Plaintiff with certified copies of this Order and the amended 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 amended complaint and summons upon Defendant as directed by Plaintiff on 12 ||Form 285. The United States will advance all costs of service. See 28 U.S.C. § 1915(d); 13 ||FED. R. CIv. P. 4(c)(3). 14 5. After service is complete, the undersigned will stay the case again and the stay 15 || will automatically lift after Defendant files the Certified Administrative Record. 16 || ITISSO ORDERED. 17 ||Dated: September 16, 2020 18 Flrrinadel toilenspu> 19 ON. RUTH BERMUDEZ MONTENEGRO 20 UNITED STATES MAGISTRATE JUDGE 21 22 . 24 □ 25° . 26 27 28 .