Charder v. Saul ( 2020 )

1 2 . 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} EMMA C., Case No.: 3:20-cv-01681-RBM Plamtitt ORDER GRANTING PLAINTIFFS 13 || Vv. APPLICATION TO PROCEED IN 14 |} ANDREW SAUL, COMMISSIONER OF PREP AVING FERS ORC 15 SOCIAL SECURITY, 16 Defendant. 17 [Doc. 2] 18 19 I. INTRODUCTION 20 On August 27, 2020, Plaintiff Emma C. (“Plaintiff”) filed a complaint under 42 21 || U.S.C. §§ 405(g) and 1383(c) seeking judicial review of the Commissioner of the Social 22 ||Security Administration’s (“Defendant” or “Commissioner”) denial of disability insurance 23 || benefits and supplemental security income under Titles II and XVI of the Social Security 24 || Act (“the Act”). (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a 25 || motion to proceed in forma pauperis (““IFP Motion”). (Doc. 2.) 26 On April 8, 2020, Chief Judge Larry A. Burns issued an order staying civil cases 27 || arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the 28 || ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 1 part “all civil cases filed on or after March 1, 2020 brought against the Commissioner . 2 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). Initially, the Court held 3 ruling on the IFP Motion in abeyance pursuant to the Chief Judge Order. But, the 4 || COVID-19 pandemic has been ongoing for months and will continue for the foreseeable 5 ||future. At this time, the Court lifts the stay of this case for the limited of purpose of ruling 6 |}on the IFP Motion which will allow Plaintiff to proceed with effectuating service of the 7 ||summons and complaint to Defendant. Once service is complete, the Court will stay the 8 case again until such time as the Commissioner begins normal operations at the Office of 9 || Appellate Hearings Operations and resumes preparation of Certified Administrative 10 j|Records. See Or. of Chief Judge No. 21 at sec. 6. 11 Having reviewed the IFP Motion and complaint, the Court GRANTS □□□□□□□□□□□ 12 |/motion and further finds Plaintiff's complaint sufficient to survive a sua sponte screening. 13 Hl. DISCUSSION 14 A. Application to Proceed IFP 15 All parties instituting a civil action in a district court of the United States, except an 16 application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). Buta 17 litigant who, because of indigency, is unable to pay the required fees or security may 18 || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 19 || facts of an affidavit of poverty must be stated with some particularity, definiteness, and 20 ||certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing United 21 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 22 The determination of indigency falls within the district court’s discretion. Rowland 23 |v. Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 24 ||194 (1993). It is well-settled that a party need not be completely destitute to proceed in 25 ||forma pauperis. Adkins v. E.I. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 (1948); 26 ||see also Escobedo, 787 F.3d at 1235. To satisfy the requirements of 28 U.S.C. § 27 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of 28 ||his poverty pay or give security for costs .. . and still be able to provide[ | himself and 1 ||dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 2 |!omitted). Nevertheless, “the same even-handed care must be employed to assure that 3 || federal funds are not squandered to underwrite, at public expense, . . . the remonstrances 4 || ofa suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 5 ||v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). □□□□□□ 6 ||tend to reject IFP motions where the applicant can pay the filing fee with acceptable 7 || sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 8 **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IFP, but later 9 required to pay $120 filing fee out of $900 settlement proceeds). 10 Here, Plaintiff has sufficiently demonstrated her entitlement to IFP status. 11 || According to her affidavit, Plaintiff's monthly income is $0, she has $60 in savings, and 12 has had no income for four years. (Doc. 2 at 1-2, 5.) Plaintiff does not have a spouse 13 any other persons relying on her for support. (/d. at 2-3.) Plaintiff alleges she relies on 14 ||her boyfriend for support, as she has not generated any income for four years. (/d. at 5.) 15 || Plaintiff owns one vehicle valued at $1,500. (dd. at 3.) Plaintiff has $1,150 in monthly 16 ||}expenses. (/d. at 4-5.) Her monthly expenses are comprised of $800 for rent or home- 17 || mortgage payment, $200 for food, $100 for utilities, and $50 for medication. (/d.) Plaintiff 18 does not expect major changes to her monthly income or expenses during the next twelve 19 ||months. (/d. at 5.) 20 Plaintiff's affidavit sufficiently demonstrated that she is unable to pay the required 21 |} $400 filing fee without sacrificing the necessities of life. See Adkins, 335 U.S. at 339-340. 22 || The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 23 || Accordingly, Plaintiff's IFP Motion is GRANTED. 24 B. Sua Sponte Screening 25 Pursuant to 28 U.S.C. § 1915(a), a complaint filed by any person proceeding IFP is 26 subject to a mandatory sua sponte screening. The Court must review and dismiss any 27 ||complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 28 || from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 1 F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 2 || 1258846, at *3 (S.D. Cal. Mar. 19, 2019). 3 To survive, complaints must contain “a short and plain statement of the claim 4 ||showing that the pleader is entitled to relief’ FED. R. Civ. P. 8(a)(2). “[T]Jhe pleading 5 ||standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 6 ||more than an unadormed, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. 7 \|Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 8 ||(2007)). And “[t]hreadbare recitals of elements of a cause of action, supported by mere 9 ||conclusory statements do not suffice.” Jd. Instead, plaintiff must state a claim plausible 10 its face, meaning “plaintiff pleads factual content that allows the court to draw the 11 ||reasonable inference that the defendant is liable for the misconduct alleged.” Id. “When 12 ||there are well-pleaded factual allegations, a court should assume their veracity, and then 13 || determine whether they plausibly give rise to an entitlement to relief.” Jd. at 679. 14 Social security appeals are not exempt from the general screening requirements for 15 cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. 16 || Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *1 17 ||(E.D. Cal. June 28, 2012)). 18 In social security appeals, courts within the Ninth Circuit have established four 19 ||/requirements necessary for a complaint to survive a sua sponte screening: 20 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 days after notice of a final decision. Second, the complaint must indicate the judicial 22 district in which the plaintiff resides. Third, the complaint must state the nature of 73 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 24 nature of the plaintiff's disagreement with the determination made by the Social 25 Security Administration and show that the plaintiff is entitled to relief. 26 || Skylar v. Saul, 19-cv-1581-NLS, 2019 WL 4039650, at *1 (S.D. Cal. Aug. 27, 2019) 27 ||(quoting Montoya, 2016 WL 890922, at *2). As to requirement four, a complaint is 28 || insufficient if it merely alleges the Commissioner was wrong in denying plaintiff benefits. 1 ||See Skylar, 2019 WL 4039650, at *1; see also Hoagland, 2012 WL 2521753, at *3. 2 Instead, a complaint “must set forth a brief statement of facts setting forth the reasons why 3 ||the Commissioner’s decision was wrong.” Skylar, 2019 WL 4039650, at *2. 4 As to the first requirement, the complaint contains sufficient allegations that Plaintiff 5 ||exhausted her administrative remedies. Plaintiff filed concurrent applications for disability 6 ||insurance benefits and supplemental security income which the Commissioner denied 7 |{initially and upon reconsideration. (Doc. | at { 6.) An administrative law judge (“ALJ”) 8 ||held a hearing and issued a decision denying Plaintiff's claim for benefits. (/d. at § 7.) 9 || Plaintiff filed a request for review, and the appeals council denied it. (Ud. at J 8.) This 10 || became the Commissioner’s final decision. (/d.) Plaintiff timely filed the complaint within 11 || sixty days of the Commissioner’s final decision. (/d. at § 8.) As to the second requirement, 12 |/the complaint states Plaintiff resides “within the jurisdictional boundaries of this Court in 13 Diego, CA.” (Ud. at 1.) As to the third requirement, Plaintiff alleges she “is, and at 14 || all times relevant to this action, disabled as that term is defined in the Social Security Act.” 15 |idd. at 4 5.) Finally, Plaintiff contends the Court should reverse or remand the 16 |}Commissioner’s final decision on several grounds. (/d. at 9 9.) Specifically, Plaintiff 17 |jalleges the ALJ “failed to articulate specific and legitimate reasons for rejecting the 18 || opinions of Dr. Kindel[,]” failed “to articulate germane reasons for rejecting the opinion of 19 ||the nurse practitioner[,]” failed “to articulate clear and convincing reasons for rejecting 20 || [Plaintiff's] testimony[,]” and erred in “limit[ing] [Plaintiff] to unskilled sedentary work . 21 ||...” Ud.) Based upon the foregoing, the Court finds the complaint establishes the four 22 ||requirements necessary to survive sua sponte screening. 23 However, the Court notes that Plaintiff's counsel has filed several complaints in 24 ||other social security appeals that contain language nearly verbatim to the instant 25 |}complaint’s paragraph five. (/d. at ¢ 5.) While paragraph five of the instant complaint 26 alleges Plaintiff is disabled and she has been disabled at all relevant times to this action, 27 boilerplate language barely meets the third screening requirement. Skylar, 2019 WL 28 ||4039650, at *1. The Court has recently issued an order discouraging Plaintiff’s counsel 1 ||against filing pleadings with such boilerplate language. Michael W. v. Saul, 20-cv-608- 2 || AJB-RBM, Doc. 6 (S.D. Cal. Sept. 16, 2020) (highlighting boilerplate language in 3 ||complaint but nevertheless finding complaint sufficient to survive sua sponte screening). 4 || While the complaints in other cases have survived a sua sponte screening, the Court 5 cautions Plaintiff's counsel that such boilerplate filings are discouraged. See Kevin C. v. 6 || Saul, 20-cv-463-RBM, Doc. 9 (S.D. Cal. Sept. 2, 2020) (finding complaint sufficient to 7 survive a sua sponte screening); see also Mark G. v. Saul, 20-cv-917-WVG, Doc. 5 (S.D. 8 May 18, 2020) (stating “the Court finds Plaintiff has sufficiently (though barely) 9 || satisfied the minimal pleading standards above by stating specific points of error assigned 10 ||by the ALJ.”); Robert D. v. Saul, 20-cv-639-MDD, Doc. 6 (S.D. Cal. June 15, 2020) 11 ||(finding complaint not subject to sua sponte dismissal); Maria R. v. Saul, 20-cv-1236- 12 || MMA-JLB, Doc. 6 (S.D. Cal. July 23, 2020) (finding complaint not subject to sua sponte 13 ||dismissal); but see Maria V. v. Saul, 20-cv-586-JLB, Doc. 6 (S.D. Cal. May 6, 2020) 14 || (dismissing complaint without prejudice finding complaint “merely parrots the standard of 15 ||judicial review” and “devoid of the [ALJ’s] findings and the specific reasons Plaintiff 16 contends the ALJ erred.”). 17 I. CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED: 19 1. Plaintiff's IFP Motion is GRANTED. 20 2. The Clerk of Court is DIRECTED to issue a summons as to Plaintiff’s 21 ||complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the 22 ||named Defendant. In addition, the Clerk of Court is DIRECTED to provide Plaintiff with 23 || certified copies of this Order and the complaint. 24 3. Upon receipt of these materials, Plaintiff is DIRECTED to complete Form 25 and forward the materials to the United States Marshals Service. 26 27 28 1 4. Upon receipt, the United States Marshals Service is ORDERED to serve a 2 copy of the Complaint and summons upon Defendant as directed by Plaintiff on Form 285. 3 || The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIv. 4 IP. 4(c)(3). 5 5. After service is complete, the Court will stay the case again and the stay will 6 || automatically lift after Defendant files the Certified Administrative Record. 7 IT ISSO ORDERED. 8 ||Dated: September 21, 2020 : 10 IN. RUTH BE DEZ MONTENEGRO il UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 . 18 19 20 21 22 23 24 . 25 26 27 28