Romero v. United States Federal Government ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 ARTURO R., Case No.: 20-cv-2386-AGS 7 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA 8 v. PAUPERIS (ECF 2), DISMISSING 9 UNITED STATES FEDERAL THE COMPLAINT WITHOUT PREJUDICE, AND CLOSING THE 10 GOVERNMENT, CASE, WITH LEAVE TO AMEND 11 Defendant. 12 13 Plaintiff moves to proceed in forma pauperis (IFP). While plaintiff qualifies to 14 proceed without paying the initial filing fee, his complaint fails to state a claim for relief. 15 So, the Court grants plaintiff’s IFP motion but dismisses the complaint without prejudice. 16 Motion to Proceed In Forma Pauperis 17 Typically, parties instituting a civil action in a United States district court must pay 18 a filing fee of $402. 28 U.S.C. § 1914(a)1. But if granted the right to proceed in forma 19 pauperis, a plaintiff can proceed without paying the fee. Rodriguez v. Cook, 169 F.3d 1176, 20 1177 (9th Cir. 1999). 21 Here, plaintiff receives $1,348 a month in unemployment, although this will soon 22 drop to only $668 in Pandemic Unemployment Insurance. (ECF 2, at 2.) His expenses are 23 currently $1,204, which includes $600 a month for his room. (Id., at 4.) Plaintiff indicates 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an administrative fee of 27 $52. See 28 U.S.C. § 1914(a); District Court Misc. Fee Schedule, § 14 (effective Dec. 1, 2020). 28 1 that he will be homeless starting in January. (Id., at 5.) The Court finds that plaintiff has 2 sufficiently shown an inability to pay the initial $402 fee. 3 28 U.S.C. § 1915(e) Screening 4 When reviewing an IFP motion, the court must screen the complaint and dismiss it 5 if it is frivolous, malicious, fails to state a claim, or seeks monetary relief from a defendant 6 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 7 (9th Cir. 2000). In the Social Security context, a plaintiff’s complaint must set forth 8 sufficient facts to support the legal conclusion that the Commissioner’s decision was 9 incorrect. “[T]o survive the Court’s § 1915(e) screening,” a plaintiff must (1) “establish 10 that she has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that 11 the civil action was commenced within sixty days after notice of a final decision,” (2) 12 “indicate the judicial district in which the plaintiff resides,” (3) “state the nature of 13 plaintiff’s disability and when the plaintiff claims she became disabled,” and (4) “identify[] 14 the nature of the plaintiff’s disagreement with the determination made by the Social 15 Security Administration and show that plaintiff is entitled to relief.” Varao v. Berryhill, 16 No. 17-cv-02463-LAB-JLB, 2018 WL 4373697, at *2 (S.D. Cal. Jan. 31, 2018) (alteration 17 and citation omitted). 18 Plaintiff’s complaint does not meet the required elements to survive a § 1915(e) 19 screening. Plaintiff states that his application for disability insurance was denied, and that 20 a federal judge ruled there were “60,000 jobs” across the country he could possibly 21 perform. (ECF 1, at 3-4.) But these facts do not establish that plaintiff has exhausted his 22 administrative remedies under 42 U.S.C. §405(g). Plaintiff also does not explicitly indicate 23 the judicial district in which he resides, although the complaint lists San Diego as the 24 “county of residence,” and his address is a P.O. Box in Chula Vista. (ECF 1, at 1; ECF 1- 25 1, at 1.) Plaintiff does state the nature of his disability: he suffered a back injury in 2001, 26 later exacerbated by a slip and fall that damaged his “lumbars,” upper back, and 27 “cervicals.” (ECF 1, at 3-4.) Plaintiff now experiences pain “24/7.” (Id.) However, plaintiff 28 does not identify the nature of his disagreement with the Social Security Administration’s 1 determination. (/d.) Because plaintiff's complaint does not meet the first, second, and 2 fourth element to survive a § 1915(e) screening, plaintiff fails to state a claim. 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 11, 2021. 8 ||Dated: December 8, 2020 10 Hon. Andrew G. Schopler United States Magistrate Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28