Tedrow v. Kijakazi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTOINETTE LORRAINE TEDROW, Case No.: 21cv1969-NLS 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 [ECF No. 2] Defendant. 16 17 18 19 Before the Court is Plaintiff Antoinette Lorraine Tedrow’s complaint seeking 20 judicial review of the Social Security Administration’s decision and accompanying 21 motion for leave to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. After due 22 consideration and for the reasons set forth below, the Court GRANTS the motion to 23 proceed IFP. 24 I. Screening under 28 U.S.C. § 1915(a) 25 A complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is subject 26 to a mandatory and sua sponte review by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 27 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails 28 to state a claim upon which relief may be granted, or seeks monetary relief from a 1 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Social security appeals 2 are not exempt from this § 1915(e) screening requirement. Hoagland v. Astrue, No. 3 1:12cv00973-SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 28, 2012); see also Calhoun 4 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (noting section 1915(e)(2)(B) is 5 “not limited to prisoners”); Lopez, 203 F.3d at 1129 (“section 1915(e) applies to all in 6 forma pauperis complaints”). 7 To pass screening, all complaints must contain a “short and plain statement of the 8 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although 9 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a 10 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009). A complaint in a social security appeal is “not exempt 12 from the general rules of civil pleading.” Hoagland, 2012 WL 2521753, at *2. 13 Several courts within the Ninth Circuit have set forth the following basic 14 requirements for complaints to survive the Court’s § 1915(e) screening: 15 First, the plaintiff must establish that she has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was 16 commenced within sixty days after notice of a final decision. Second, the 17 complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiff's disability and 18 when the plaintiff claims she became disabled. Fourth, the complaint must 19 contain a plain, short, and concise statement identifying the nature of the plaintiff's disagreement with the determination made by the Social Security 20 Administration and show that the plaintiff is entitled to relief. 21 See, e.g., Montoya v. Colvin, No. 16cv00454-RFB-NJK, 2016 WL 890922, at *2 (D. 22 Nev. Mar. 8, 2016) (collecting cases); Graves v. Colvin, No. 15cv106-RFB-NJK, 2015 23 WL 357121, *2 (D. Nev. Jan. 26, 2015) (same). 24 As for the fourth requirement, “[e]very plaintiff appealing an adverse decision of 25 the Commissioner believes that the Commissioner was wrong.” Hoagland, 2012 WL 26 2521753, at *3. Thus, a complaint merely stating that the Commissioner's decision was 27 wrong or that “merely parrots the standards used in reversing or remanding a case” is 28 1 insufficient to satisfy a plaintiff’s pleading requirement. See, e.g., Cribbet v. Comm’r 2 of Social Security, No. 12cv1142-BAM 2012 WL 5308044, *3 (E.D. Cal. Oct. 29, 2012); 3 Graves, 2015 WL 357121, at *2. Instead, “[a] complaint appealing the Commissioner’s 4 denial of disability benefits must set forth a brief statement of facts setting forth the 5 reasons why the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, at 6 *2; see also Harris v. Colvin, No. 14cv383-GW (RNB), 2014 WL 1095941, *4 (C.D. 7 Cal. Mar. 17, 2014) (dismissing complaint which did not “specify . . . the respects in 8 which [the plaintiff] contends that the ALJ’s findings are not supported by substantial 9 evidence and/or that the proper legal standards were not applied”); Gutierrez v. Astrue, 10 No. 11cv454-GSA, 2011 WL 1087261, *2 (E.D. Cal. Mar. 23, 2011) (dismissing 11 complaint which did not “provide[] any substantive reasons” for appealing the ALJ’s 12 decision and did not “identif[y] any errors in [the] decision”). The plaintiff must provide 13 a statement identifying the basis of the plaintiff’s disagreement with the Social Security 14 Administration’s determination and must make a showing that she is entitled to relief, “in 15 sufficient detail such that the Court can understand the legal and/or factual issues in 16 dispute so that it can meaningfully screen the complaint pursuant to § 1915(e).” Graves, 17 2015 WL 357121, at *2. 18 With these standards in mind, the Court turns to Plaintiff’s complaint. Plaintiff 19 filed her claim for benefits in 2018. ECF No. 1 at ¶ 6. The ALJ denied her benefits on 20 March 12, 2021. Id. at ¶ 8. Plaintiff alleges that the ALJ erred in denying her benefits 21 because the ALJ did not state clear and convincing reasons for rejecting the symptom and 22 limitation testimony that Tedrow gave that at times her mental health symptoms were so 23 severe that she has hurt herself. Id. at ¶ 9. The Court finds that the complaint has 24 included sufficient details in this regard to survive § 1915 screening. 25 II. Motion to Proceed In Forma Pauperis 26 Having found that Plaintiff’s complaint survives screening, the Court turns to her 27 ability to proceed without payment of the required fees. It is well-settled that a party 28 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & 1 Co., 335 U.S. 331, 339-40 (1948). The determination of indigency falls within the 2 district court’s discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 3 Cir. 1991) (noting “Section 1915 typically requires the reviewing court to exercise its 4 sound discretion in determining whether the affiant has satisfied the statute’s requirement 5 of indigency”), rev’d on other grounds, 506 U.S. 194 (1993). “An affidavit in support of 6 an IFP application is sufficient where it alleges that the affiant cannot pay the court costs 7 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 8 Cir. 2015) (citing Adkins, 335 U.S. at 339). At the same time, however, “the same even- 9 handed care must be employed to assure that federal funds are not squandered to 10 underwrite, at public expense . . . the remonstrances of a suitor who is financially able, in 11 whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 12 850 (D.R.I. 1984). Finally, the facts as to the litigant’s indigency must be stated “with 13 some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 14 940 (9th Cir. 1981). 15 Here, Plaintiff states that she does not have a job and makes $0 in wages, but her 16 spouse makes $1170.00 per month in wages. ECF No. 2 at 1. Plaintiff has $0 in cash. 17 Id. at 2. Plaintiff and her spouse own two cars, worth $659.00 and $762.00. Id. Plaintiff 18 and her spouse incur monthly expenses including rent, food, transportation, and insurance 19 totaling $1180.00. Id. at 4-5. 20 Upon review of Plaintiff’s IFP application, the Court finds that Plaintiff has 21 sufficiently shown that she is unable to pay the fees associated with commencing this 22 lawsuit. Therefore, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis. 23 III. Conclusion 24 Accordingly, for the reasons as set forth above, the Court GRANTS Plaintiff’s motion 25 to proceed in forma pauperis and ORDERS as follows: 26 1. The Clerk shall issue a summons as to Plaintiff’s Complaint (ECF No. 1) upon 27 Defendant and shall forward it to Plaintiff along with a blank U.S. Marshal Form 28 285. In addition, the Clerk shall provide Plaintiff with a certified copy of this 1 Order and a certified copy of her Complaint and the summons. Upon receipt of 2 this “IFP Package,” Plaintiff is directed to complete the Form 285 as completely 3 and accurately as possible, and to return it to the U.S. Marshal according to the 4 instructions provided by the Clerk in the letter accompanying her IFP package. 5 Upon receipt, the U.S. Marshal shall serve a copy of the complaint and summons 6 upon Defendant as directed by Plaintiff on the form. All costs of service shall be 7 advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 8 2. Defendant shall reply to the complaint within the time provided by the applicable 9 provisions of Federal Rule of Civil Procedure 12(a) and consistent with Civil Local 10 Rule 7.1(e)(6). 11 3. Plaintiff shall serve upon Defendant or, if appearance has been entered by counsel, 12 upon Defendant’s counsel, a copy of every further pleading or other document 13 submitted for consideration of the Court. Plaintiff shall include with the original 14 paper to be filed with the Clerk of the Court a certificate stating the manner in 15 which a true and correct copy of any document was served on the Defendant or 16 counsel of Defendant and the date of service. 17 IT IS SO ORDERED. 18 Dated: December 27, 2021 19 Mie. Lo mm 0 Hon. Nita L. Stormes United States Magistrate Judge 22 23 24 25 26 27 28