Maserang v. Astrue

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. Signed by Judge Janis L. Sammartino on 3/1/12. (lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ZSCAQULINE C. MASERANG,

CASE NO. 12-CV-0370 JLS (BLM)

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ORDER: GRANTING
PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS

Plaintiff,
vs.

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(ECF No. 2.)
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MICHAEL J. ASTRUE, Commissioner of
Social Security,

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Defendant.

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Presently before the Court is Plaintiff Zscaquline C. Maserang’s (“Plaintiff”) motion for
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leave to proceed in forma pauperis (“IFP”). (IFP Mot., ECF No. 2.) Plaintiff has submitted a civil
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action seeking judicial review of the Commissioner’s decision denying Plaintiff’s claim for
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disability insurance benefits on December 13, 2011. (Compl. 2, ECF No. 1.)
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MOTION TO PROCEED IFP
All parties instituting any civil action, suit, or proceeding in a district court of the United
States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only
if plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize the commencement of
an action without the prepayment of fees if the party submits an affidavit, including a statement of
assets, showing that plaintiff is unable to pay the required filing fee. 28 U.S.C. § 1915(a).
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Here, Plaintiff is not currently employed and was last employed on October 21, 2008,

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making $10.50 per hour. (IFP Mot. 2, ECF No. 2.) Plaintiff receives a total of $1,773 per month

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from Social Security payments, disability, other welfare, and child support, and owns a 2001 Ford

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Windstar. (Id.) Plaintiff supports two children, lists expenses as “rent, food, and utilities,” and has

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a checking account with “$0 balance after all bills are paid.” (Id. at 2–3.) Based on the

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information provided, the Court finds that Plaintiff is unable to pay the required filing fee.

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Accordingly, Plaintiff’s motion to proceed IFP is GRANTED.

INITIAL SCREENING

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Notwithstanding IFP status, the Court must subject each civil action commenced pursuant

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to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it

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finds “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);

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see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.

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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir.

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2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua

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sponte dismiss an IFP complaint that fails to state a claim).

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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended,

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28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP

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provisions of § 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal

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to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See id. at 1127; Calhoun,

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254 F.3d at 845; McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997) (stating that sua

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sponte screening pursuant to § 1915 should occur “before service of process is made on the

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opposing parties”).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Andrews v. King, 398

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F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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In this case, Plaintiff appeals the Commissioner’s decision denying Plaintiff’s claim for

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disability insurance benefits. The Court finds that Plaintiff’s claim is sufficiently pleaded to

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survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2). See, e.g., Rhett v. Disman,

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228 Fed. Appx. 225, 227 (3d Cir. 2007) (stating that “seeking review of the denial of supplemental

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social security disability benefits” is sufficient to state a claim). Therefore, Plaintiff is entitled to

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U.S. Marshal service on Plaintiff’s behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d)

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(“The officers of the court shall issue and serve all process, and perform all duties in [IFP]

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cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may order that service be made by a United States

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marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915.”). Plaintiff is cautioned, however, that “the sua sponte screening and dismissal

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procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a

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defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal.

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2007).

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CONCLUSION
For reasons stated above, the Court GRANTS Plaintiff’s motion to proceed IFP pusuant to

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28 U.S.C. § 1915(a). The Clerk shall issue a summons as to Plaintiff’s Complaint (ECF No. 1)

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upon Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for

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each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order

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and a certified copy of his Complaint and the summons. Upon receipt of this “IFP Package,”

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Plaintiff is directed to complete the forms as completely and accurately as possible, and to return

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them to the U.S. Marshal according to the instructions provided by the Clerk in the letter

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accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy of the

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Complaint and summons upon Defendants as directed by Plaintiff on the forms. All costs of

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service shall be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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Defendant shall reply to the complaint within the time provided by the applicable

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provisions of Federal Rule of Civil Procedure 12(a). Plaintiff shall serve upon Defendant or, if

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appearance has been entered by counsel, upon Defendant’s counsel, a copy of every further
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pleading or other document submitted for consideration of the Court. Plaintiff shall include with

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the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a

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true and correct copy of any document was served on the Defendant or counsel of Defendant and

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the date of service. Any paper received by a district judge or magistrate judge which has not been

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filed with the Clerk or which fails to include a Certificate of Service may be disregarded.

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IT IS SO ORDERED.

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DATED: March 1, 2012
Honorable Janis L. Sammartino
United States District Judge

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