Elsaesser v. Kijakazi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LYNNMARIE E., Case No.: 21-cv-00244-JLB 12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION FOR 14 ANDREW SAUL, Acting Commissioner LEAVE TO PROCEED IN FORMA of Social Security, 15 PAUPERIS; AND Defendant. 16 (2) SCREENING AND DISMISSING 17 COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) 18 19 [ECF Nos. 1; 2] 20 21 Plaintiff Lynnmarie E. has filed a Complaint against the Commissioner of Social 22 Security, Andrew Saul, seeking judicial review of the Commissioner’s final decision 23 denying her application(s) for “Social Security Disability Insurances and/or Supplemental 24 Security Income.” (ECF No. 1 ¶ 6.) The parties have consented to the disposition of the 25 case by Magistrate Judge Jill L. Burkhardt pursuant to 28 U.S.C. § 636(c). (ECF No. 4.) 26 Presently before the Court is Plaintiff’s Motion for Leave to proceed In Forma 27 Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons set forth below, the Court 28 /// 1 GRANTS Plaintiff’s IFP Motion and sua sponte DISMISSES the Complaint pursuant to 2 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. 3 I. IFP MOTION 4 A. Legal Standard 5 All parties instituting a civil action, suit, or proceeding in a district court of the 6 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 7 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 8 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 9 § 1915(a)(1). Section 1915(a)(1) provides that: 10 any court of the United States may authorize the commencement, prosecution 11 or defense of any suit, action or proceeding . . . without prepayment of fees or 12 security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 13 such fees or give security therefor. 14 15 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 16 assets to warrant IFP status, the determination of indigency falls within the district court’s 17 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 18 1915 typically requires the reviewing court to exercise its sound discretion in determining 19 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 20 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 21 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 22 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 23 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 24 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 25 725 (9th Cir. 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with 26 some particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 27 /// 28 /// 1 B. Discussion 2 Here, Plaintiff has not paid the $4021 filing fee required to maintain a civil action in 3 this District and has instead moved to proceed IFP. (ECF No. 2.) Plaintiff attests to the 4 following under penalty of perjury in her affidavit of assets: She is unemployed but 5 receives $1,852 per month from unemployment payments ($408), food stamps ($204), and 6 “Section 8 Housing Pay[ment]s” ($1,240). (Id. ¶¶ 1–2.) She has $80 in a checking account 7 and a 2015 Chevy Spark valued at $1,300 with a salvage title. (Id. ¶¶ 4–5.) She has no 8 other assets. (Id. ¶ 5.) 9 Plaintiff’s total monthly expenses average $2,146 for: rent ($1,500); utilities ($120); 10 food ($204); clothing ($40); laundry and dry cleaning ($75); renter’s insurance ($12); life 11 insurance ($30); motor vehicle insurance ($50); and installment payments on Discover and 12 CapitalOne credit cards ($80) and a Kohl’s Department Store account ($35). (Id. ¶ 8.) 13 Therefore, on average, Plaintiff’s monthly expenses exceed her monthly income by $294. 14 Plaintiff attests that she is “currently paying [her] bills with credit cards” that are “almost 15 maxed out.” (Id. ¶ 11.) 16 The Court finds that Plaintiff’s affidavit of assets sufficiently demonstrates that she 17 lacks the financial resources to pay the $402 filing fee without causing undue financial 18 hardship. Accordingly, Plaintiff is given leave to proceed IFP. 19 /// 20 /// 21 /// 22 /// 23 24 1 See 28 U.S.C. § 1914(a) (“The clerk of each district shall require the parties 25 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $350, 26 except that on application for writ of habeas corpus the filing fee shall be $5.”); CASD Fee Schedule, https://www.casd.uscourts.gov/_assets/pdf/courtinfo/Fees%20of%20the%20U. 27 S.%20District%20Court%20(CASD).pdf (effective Mar. 1, 2021) (imposing a $52 28 administrative fee for a civil action, suit, or proceeding). 1 II. SCREENING OF COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) 2 A. Legal Standard 3 Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject 4 to a mandatory review by the Court and sua sponte dismissal if it fails to state a claim upon 5 which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). “[S]ection 1915(e) not only 6 permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” 7 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (emphasis added). Complaints in 8 social security appeal cases are not exempt from § 1915(e)’s screening requirement. 9 Hoagland v. Astrue, No. 1:12–cv–00973–SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 10 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of right, such as 11 an appeal of the Commissioner’s denial of social security disability benefits.”); cf. Calhoun 12 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 13 are not limited to prisoners.”). 14 Under Rule 8 of the Federal Rules of Civil Procedure, all complaints must contain a 15 “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 16 R. Civ. P. 8(a)(2). Detailed factual allegations are not required in a complaint, but 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a 19 complaint in a social security disability appeal may differ in some ways from complaints 20 in other civil cases, it is “not exempt from the general rules of civil pleading.” Hoagland, 21 2012 WL 2521753, at *2. Courts in this District and other districts in the Ninth Circuit 22 look for four basic requirements when screening a social security disability complaint for 23 failure to state a claim: 24 First, the plaintiff must establish that [she] has exhausted [her] administrative 25 remedies pursuant to 42 U.S.C. § 405(g) and that the civil action was 26 commenced within sixty days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. 27 Third, the complaint must state the nature of the plaintiff’s disability and when 28 the plaintiff claims [she] became disabled. Fourth, the complaint must contain 1 a plain, short, and concise statement identifying the nature of the plaintiff’s disagreement with the determination made by the Social Security 2 Administration and show that the plaintiff is entitled to relief. 3 4 Montoya v. Colvin, No. 2:16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. Mar. 5 8, 2016). 6 Expanding on the fourth requirement, a complaint fails to state a claim if it simply 7 states that the Commissioner was wrong in denying a plaintiff benefits, for “[e]very 8 plaintiff appealing an adverse decision of the Commissioner believes that the 9 Commissioner was wrong.” Hoagland, 2012 WL 2521753, at *3. Thus, “a social security 10 complaint that merely parrots the standards used in reversing or remanding a case is not 11 sufficient to withstand a screening pursuant to [§] 1915(e).” Montoya, 2016 WL 890922, 12 at *2. Instead, “[a] complaint appealing the Commissioner’s denial of disability benefits 13 must [include] a brief statement of facts setting forth the reasons why the Commissioner’s 14 decision was wrong.” Hoagland, 2012 WL 2521753, at *2. 15 B. Discussion 16 Applying these four basic requirements to the Complaint here, the Court finds that 17 the Complaint is insufficient with respect to the fourth requirement. The Complaint fails 18 to allege any specific reasons for why the decision of the Administrative Law Judge 19 (“ALJ”) should be reversed or remanded. Instead, the Complaint “merely parrots” the 20 standard of judicial review by alleging that the ALJ’s decision to deny Plaintiff’s “disability 21 claim”2 was not “supported by substantial evidence under the standards set forth by 22 23 24 2 The Complaint is also ambiguous as to whether Plaintiff was denied Social Security 25 Disability Insurance benefits or Supplemental Security Income, or both. (See ECF No. 1 26 ¶¶ 1, 6, 8.) The Court further notes that, seemingly in error, the Complaint uses male pronouns when referring to Plaintiff. (See id. ¶¶ 7, 9.) It is apparent that these types of 27 errors are due to the use of a form complaint. Plaintiff’s counsel’s firm is urged to 28 “reconsider using form complaints, which fail to comply with [Federal Rule of Civil 1 U.S.C. § 405(g) and all other applicable laws and regulations, including the weight of 2 || the evidence, Plaintiff's credibility, the medical opinions of [her] doctor’s, and any and all 3 || other appliable evidentiary issues.” (ECF No. 1 49.) This boilerplate statement does not 4 || identify the nature of Plaintiff's disagreement with the ALJ’s decision. See Montoya, 2016 5 || WL 890922, at *2. Accordingly, the Court is obligated to sua sponte dismiss the Complaint 6 || for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(@i). 7 Hr. CONCLUSION 8 For the reasons stated above, the Court hereby: 9 (1) GRANTS Plaintiff’s IFP Motion (ECF No. 2); and 10 (2) sua sponte DISMISSES the Complaint (ECF No. 1) without prejudice and 11 || with leave to amend for failure to state a claim upon which relief may be granted. Plaintiff 12 have until June 18, 2021 to file an amended complaint that cures the deficiencies set 13 above. 14 IT IS SO ORDERED. 15 Dated: May 28, 2021 - n. Jill L. Burkhardt ited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 Procedure] 8 and the IFP statute and waste the Court’s resources.” See Irizarry v. Berryhill, 28 || No. 19-cv-0476-AJB-NLS (S.D. Cal. Mar. 15, 2019), ECF No. 5.