Montgomery v. Colvin

Filing 7

ORDER granting 2 Motion to Proceed in forma pauperis. US Marshal shall effect service of complaint. Signed by Judge Janis L. Sammartino on 10/3/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEAN E. MONTGOMERY,

Case No.: 16cv1735-JLS (PCL)
Plaintiff,

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ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,

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(ECF No. 2)

Defendant.

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Presently before the Court is Plaintiff Sean E. Montgomery’s Motion to Proceed In

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Forma Pauperis (“IFP”). (IFP Mot., ECF No. 2.) Plaintiff, a prisoner in Wasco State

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prison proceeding pro se, has timely filed an action requesting that this Court review the

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Social Security Administration (“SSA”)’s denial of benefits. (Compl. at 4, ECF No. 1.)

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Plaintiff argues that the SSA’s denial decision was not supported by substantial evidence.

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IFP MOTION

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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16cv1735-JLS (PCL)

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$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner and he

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is granted leave to proceed IFP, he nevertheless remains obligated to pay the entire fee in

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“increments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed, see 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (PLRA),

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a prisoner seeking leave to proceed IFP must also submit a “certified copy of the trust fund

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account statement (or institutional equivalent) for . . . the six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d

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1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses

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an initial payment of 20% of (a) the average monthly deposits in the account for the past

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six months, or (b) the average monthly balance in the account for the past six months,

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whichever is greater. See 28 U.S.C. § 1915(b)(1); Taylor, 281 F.3d at 850. If the prisoner

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has no assets at the time of filing then the initial payment is waived until sufficient “funds

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exist.” Taylor, 281 F.3d at 850. The institution having custody of the prisoner then further

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collects subsequent payments, assessed at 20% of the preceding month’s income, in any

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month in which the prisoner’s account exceeds $10, and forwards them to the Court until

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the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

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account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Andrews,

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398 F.3d at 1119. These statements show that Plaintiff currently has $0 in his account and

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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay
an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is
waived if the plaintiff is granted leave to proceed IFP. Id.
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$0 in securities, but during the past six months had an average monthly balance of $23.55

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and an average monthly deposit of $16.67. (IFP Mot. at 4.) Accordingly, the Court

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assesses an initial partial filing fee of $4.71, payment of which is deferred until sufficient

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funds exist. The Court further directs the Secretary of the California Department of

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Corrections and Rehabilitation (CDCR), or his designee, to collect the entire $350 balance

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of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The PLRA also obligates the Court to review complaints filed by all persons

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proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility

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[and] accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of

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criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary

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program.” See 28 U.S.C. §§ 1915(e)(2), (h). Under these provisions of the PLRA, the

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Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous,

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malicious, fail to state a claim, or which seek damages from defendants who are immune.

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See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b); Rhodes v. Robinson, 621 F.3d 1002, 1004

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(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (discussing § 1915(e)(2)).

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All complaints must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a

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complaint states a plausible claim is context-specific, requiring the reviewing court to draw

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on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550

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U.S. at 556).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”
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16cv1735-JLS (PCL)

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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court

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must accept as true all allegations of material fact and must construe those facts in the light

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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see

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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).”). In addition, the Court must

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liberally construe a pro se litigant’s pleadings. See Haines v. Kerner, 404 U.S. 519, 521–

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In the present case, although Plaintiff’s complaint is entitled “Complaint Under the

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Civil Rights Act 42 U.S.C. § 1983” and invokes jurisdiction “pursuant to 28 U.S.C. §

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1343(a)(3) and 42 U.S.C. § 1983,” it is clear that Plaintiff seeks review of his SSA benefits

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denial. (See, e.g., Compl. at 5 (noting in “Request for Relief” that “Plaintiff is asking . . .

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that the Court review his claim for Disability Benefits”); id. at 4 (labeling Count 1 as

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“Deprivation of Social Security Disability Benefits Payments” and noting in supporting

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facts that “[t]he decision of Carolyn W. Colvin . . . is not supported by substantial

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evidence”)). Accordingly, and because Plaintiff’s complaint was timely filed, the Court

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has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) & 1383(c). Further,

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Plaintiff asserts that he cannot keep a job due to various psychological diagnoses and

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medicines, and severe nerve damage in his right hand. (Id. at 4.) Plaintiff has also attached

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supporting documentation in the form of several SSA notice letters and internal prison

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documents such as Plaintiff’s medical classification stating that Plaintiff is “[u]nable to

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work using [his] right hand.” (Id. at 7–14.)

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Taking the above information in the light most favorable to this pro se Plaintiff, the

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Court concludes that Plaintiff has pleaded sufficient factual information to allege a

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plausible claim to relief. Plaintiff is therefore entitled to U.S. Marshal service on his behalf.

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28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

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perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that

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service be made by a United States marshal or deputy marshal . . . if the plaintiff is
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16cv1735-JLS (PCL)

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authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). Plaintiff is cautioned,

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however, that “the sua sponte screening and dismissal procedure is cumulative of, and not

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a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to

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bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).

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CONCLUSION

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s IFP Motion pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is

GRANTED.
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The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint

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(ECF No. 1) upon Defendant and forward it to Plaintiff along with a blank U.S. Marshal

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Form 285 for the named Defendant. In addition, the Clerk is DIRECTED to provide

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Plaintiff with a certified copy of this Order and a certified copy of his Complaint (ECF

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No. 1) and the summons so that he may serve the named Defendant. Upon receipt of this

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“IFP Package,” Plaintiff is DIRECTED to complete the Form 285 as completely and

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accurately as possible, and to return it to the United States Marshal according to the

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instructions provided by the Clerk in the letter accompanying the IFP package.

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Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the

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Complaint and summons upon the named Defendant as directed by Plaintiff on the USM

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Form 285. All costs of service will be advanced by the United States. See 28 U.S.C. §

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1915(d); Fed. R. Civ. P. 4(c)(3).

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4.

Defendant is thereafter ORDERED to reply to Plaintiff’s Complaint within

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the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

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See 42 U.S.C. § 1997e(g) (noting that once the Court has conducted its sua sponte screening

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary

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determination based on the face on the pleading alone that Plaintiff has a “reasonable

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opportunity to prevail on the merits,” the defendant is required to respond).

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Plaintiff SHALL SERVE upon the Defendant or, if appearance has been

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

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paper to be filed with the Clerk, a certificate stating the manner in which a true and correct

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copy of the document was served on the Defendant, or counsel for Defendant, and the date

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of that service. Any paper received by the Court which has not been properly filed with

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

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IT IS SO ORDERED.
Dated: October 3, 2016

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