Solomon v. Berryhill

Filing 4

ORDER Granting 2 Motion to Proceed IFP. Signed by Judge Janis L. Sammartino on 1/4/2018. (IFP Packet Mailed)(FWD Copy of order to USM)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NANCY JEAN JOINER SOLOMON,

Case No.: 17-CV-2530 JLS (BGS)

Plaintiff,

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ORDER GRANTING MOTION TO
PROCEED IFP

v.
NANCY A. BERRYHILL,

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(ECF No. 2)
Defendant.

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Presently before the Court is Plaintiff Nancy Jean Joiner Solomon’s Motion to

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Proceed In Forma Pauperis (“IFP”). (“IFP Mot.,” ECF No. 2.) For the following reasons

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the Court GRANTS Plaintiff’s IFP Motion.

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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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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A

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federal court may authorize the commencement of an action without the prepayment of

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fees if the party submits an affidavit, including a statement of assets, showing that he is
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17-CV-2530 JLS (BGS)

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unable to pay the required filing fee. 28 U.S.C. § 1915(a).

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In support of her IFP Motion, Plaintiff has submitted an affidavit of her financial

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status pursuant to 28 U.S.C. § 1915(a)(1) and Civil Local Rule 3.2. These statements show

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that Plaintiff does not receive any income, (IFP Mot. 2),1 and that she was last employed

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in 2012, (id. at 2). Thus it appears that Plaintiff does not have the funds to pay the requisite

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filing fee. Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP.

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

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”

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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)

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“not only permits but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim”).

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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)

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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915

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make and rule on its own motion to dismiss before directing the Marshal to effect service

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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette

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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.

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Jan. 9, 2013).

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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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Pin citations refer to the CM/ECF numbers electronically stamped at the top of each page.
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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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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).”).

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“While factual allegations are accepted as true, legal conclusions are not.” Hoagland

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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)

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(citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a

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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal,

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556 U.S. at 679).

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Plaintiff’s Complaint adequately states a claim for judicial review of a denial of

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Social Security benefits. (See generally Complaint (“Compl.”), ECF No. 1.) Specifically,

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Plaintiff alleges that she has exhausted her administrative remedies with respect to her

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denial of benefits and now seeks judicial review of this denial based on a failure to apply

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proper legal standards and a lack of substantial evidence. (Id. at 2–5.) Taking the above

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information in the light most favorable to Plaintiff, the Court concludes that Plaintiff has

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pled sufficient factual information to allege a plausible claim for relief. Plaintiff is therefore

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entitled to U.S. Marshal service on her behalf. 28 U.S.C. § 1915(d) (“The officers of the

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court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ.

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P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal or

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

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motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115,

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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 (ECF No. 2) pursuant to 28 U.S.C. § 1915(a) is

GRANTED.

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2.

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 her Complaint (ECF No.

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1) and the summons so that he may serve the named Defendant. Upon receipt of this “IFP

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

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

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

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3.

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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5.

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counsel, upon Defendant’s counsel, a copy of every further pleading or other document

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submitted for consideration by the Court. Plaintiff must include with the original paper to

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

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be filed with the Clerk, a certificate stating the manner in which a true and correct copy of

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

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service. Any paper received by the Court which has not been properly filed with the Clerk,

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

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IT IS SO ORDERED.
Dated: January 4, 2018

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