1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 Case No.: 21-cv-0679-BLM 12 JASON BLOUNT, 13 Plaintiff, ORDER DIRECTING THE UNITED STATES MARSHAL TO SERVE A COPY 14 v. OF THE AMENDED COMPLAINT AND SETTING ADDITIONAL PROCEDURES 15 ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, 16 [ECF No. 14] Defendant. 17 18 19 20 21 The instant case was initiated on April 16, 2021 when Plaintiff filed this action pursuant 22 to 42 U.S.C. § 405(g) of the Social Security Act (“Act”) seeking judicial review of the 23 administrative decision of the Commissioner of the Social Security Administration (“Defendant” 24 or “Commission”), which denied Plaintiff’s application for supplemental security income (“SSI”) 25 benefits. ECF No. 1. That same day, Plaintiff filed an Application to Proceed in District Court 26 without Prepaying Fees or Costs. ECF No. 2. 27 On April 21, 2021, the Court issued an Order Denying Without Prejudice Plaintiff’s 28 Application to Proceed in District Court Without Prepaying of Fees or Costs and Dismissing 1 Complaint with Leave to Amend. ECF No. 5. The Court denied Plaintiff’s request to proceed 2 (“IFP”) because Plaintiff did not establish that he was unable to pay the $400 3 filing fee. See Id. In doing so, the Court identified specific questions that Plaintiff failed to 4 answer and specific information that Plaintiff failed to provide. Id. at 3. Similarly, the Court 5 advised Plaintiff that his complaint was dismissed because he failed to satisfy the first of four 6 elements necessary for a complaint to survive a screening. Id. at 4-5; see also Skylar 7 v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019). 8 On November 8, 2021, Plaintiff filed an amended complaint and a second Application to 9 Proceed in District Court without Prepaying Fees or Costs. See Case No. 21-cv-1889-JLB. On 10 December 14, 2021, Judge Burkhardt transferred Plaintiff’s filings to the original case. Id. at 11 ECF No. 4. The Court interpreted those filings as amended pleadings in the original case. See 12 Case No. 21-cv-0679-BLM at ECF Nos. 6 & 7. After reviewing the amended application and 13 complaint, the Court found that Plaintiff failed to correct the errors identified by the Court in its 14 April 21, 2021 order. ECF No. 8. As a result, the Court denied Plaintiff’s amended Application 15 to Proceed in District Court without Prepaying Fees or Costs without prejudice and dismissed 16 Plaintiff’s amended complaint with leave to amend. Id. 17 On January 28, 2022, Plaintiff filed a Second Amended Complaint and a new Application 18 to Proceed in District Court without Prepaying Fees or Costs. See ECF Nos. 9 & 10. Plaintiff 19 also filed a Motion to Appoint Counsel. ECF No. 11. After reviewing the amended application 20 and complaint, the Court found that Plaintiff did not correct all of the errors identified in the 21 Court’s December 22, 2021 order. See ECF No. 8. Accordingly, the Court denied Plaintiff’s 22 motion to appoint counsel, granted Plaintiff’s amended Application to Proceed in District Court 23 without Prepaying Fees or Costs, and dismissed Plaintiff’s Second Amended Complaint with leave 24 to amend. 25 On March 4, 2022, Plaintiff filed a Third Amended Complaint. ECF No. 14. After reviewing 26 the Third Amended Complaint, the Court finds that Plaintiff corrected all of the errors identified 27 in the Court’s February 2, 2022 order and that it is sufficient to survive a screening. 28 See ECF No. 12. 1 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 2 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 3 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 4 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 5 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 6 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 7 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 8 1126–27. 9 To survive, all complaints must contain “a short and plain statement of the claim showing 10 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 11 announces does not require ‘detailed factual allegations,’ but it demands more than an 12 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 13 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 14 “recitals of elements of a cause of action, supported by mere conclusory statements do not 15 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the 16 pleaded factual content allows the court to draw the reasonable inference that the defendant is 17 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. 18 at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their 19 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 20 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements 21 for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 22 Mar. 8, 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)). 23 In the context of a social security appeal, courts within the Ninth District have established 24 four elements necessary for a complaint to survive a screening: 25 First, the plaintiff must establish that she has exhausted her administrative 26 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 27 within sixty days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must 28 1 state the nature of the plaintiff's disability and when the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement 2 identifying the nature of the plaintiff's disagreement with the determination made 3 by the Social Security Administration and show that the plaintiff is entitled to relief. 4 Skylar, 2019 WL 4039650 at *1 (quoting Montoya, 2016 WL 890922 at *2). With regard to 5 element four, a complaint is insufficient if it merely states that the Commissioner was wrong in 6 denying a plaintiff benefits. See id.; see also Hoagland, 2012 WL 2521753 at *3 (“Every plaintiff 7 appealing an adverse decision of the Commissioner believes that the Commissioner was wrong. 8 The purpose of the complaint is to briefly and plainly allege facts supporting the legal conclusion 9 that the Commissioner’s decision was wrong.”). Instead, the “complaint . . . must set forth a 10 brief statement of facts setting forth the reasons why the Commissioner’s decision was wrong.” 11 Id. at *2. 12 After reviewing the Third Amended Complaint, the Court finds that Plaintiff has 13 adequately alleged facts to survive a screening. Plaintiff states that he exhausted 14 his administrative remedies pursuant to 42 U.S.C. § 405(g) and that this civil action was 15 commenced within sixty days after notice of a final decision from the Commission. Plaintiff 16 states that he filed his application for supplemental security income on August 6, 2019 [ECF No. 17 14 at 3] and that on January 12, 2021, the Appeals Council denied Plaintiff’s request for review, 18 thereby exhausting all of Plaintiff’s administrative remedies. Id. at 2. Sixty days after January 19 12, 2021 is March 13, 2021, but Plaintiff did not file his initial complaint [ECF No. 1] until April 20 16, 2021—one month after the sixty day deadline. However, Plaintiff advises the Court that he 21 received a letter from the Appeals Council on March 12, 2021 extending his deadline to file an 22 appeal by thirty-five days from the receipt of the letter. ECF No. 14 at 2. Thirty-five days after 23 March 12, 2021 is April 16, 2021. Plaintiff also states that he resides within the jurisdictional 24 boundaries of this Court in San Diego, CA. ECF No. 14 at 1. Further, Plaintiff sufficiently states 25 the nature of his disability and the date he became disabled. Plaintiff advises the Court that he 26 became disabled on August 3, 2018 and suffers from “injuries as a result of [a] knife stabbing 27 which caused neurological permanent injury, pain, reduced ability to use his left hand and arm 28 1 || and resulting impairments”, including “radio sensory neuropathy in the left arm and back spasms 2 ||in the center and right side of the back.” Id. at 3. Finally, Plaintiff includes a plain, short, and 3 || concise statement identifying the nature of his disagreement with the determination made by 4 || the Social Security Administration that shows that Plaintiff is entitled to relief. Plaintiff advises 5 ||the Court that, “the ALJ made credibility decisions affecting the outcome without having an 6 || opportunity to gage [sic] and evaluate [Plaintiff's] demeanor.” Id. at 4. Additionally, Plaintiff 7 states that “the Administrative Law Judge failed to fully develop the record and consider the 8 || aggregate impact of all of [Plaintiff's] conditions in reaching his decision.” Id. Lastly, Plaintiff 9 || states that “the ALJ did not fully evaluate whether such [past relevant work] could be performed 10 || with the intensity, pace and consistency required by the employers in the work force.” Id. 11 In light of the Court's ruling: 12 1. The United States Marshal shall serve a copy of the Amended Complaint filed on 13 ||March 4, 2022 [ECF No. 14] and an accompanying summons upon Defendant as directed by 14 || Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United States. 15 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by 16 || counsel, upon Defendant’s counsel, a copy of every further pleading or document submitted for 17 || consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk 18 || of Court a certificate stating the manner in which a true and correct copy of any document was 19 ||served on Defendant or Defendant’s counsel and the date of service. Any paper received by a 20 || District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include 21 Certificate of Service will be disregarded. 22 IT IS SO ORDERED. 23 || Dated: 3/9/2022 lxirbee Mager 24 Hon. Barbara L. Major United States Maqistrate Judde 25 26 27 28