Rodriguez v. Saul

Filing 8

ORDER granting 7 Motion to Proceed in forma pauperis and dismissing Complaint without prejudice. Plaintiff may file an amended complaint on or before December 4, 2020. Signed by Magistrate Judge Linda Lopez on 11/16/2020. (jpp)

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Case 3:20-cv-01771-LL Document 8 Filed 11/16/20 PageID.24 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICIA R., Case No.: 20cv1771-LL Plaintiff, 12 13 v. 14 ORDER GRANTING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE ANDREW SAUL, Commissioner of Social Security, 15 16 Defendant. [ECF No. 7] 17 18 Currently before the Court is Plaintiff’s renewed application for leave to proceed in 19 forma pauperis (“IFP”). ECF No. 7. In this action, Plaintiff is seeking reversal or remand 20 of the final decision of the Commissioner of Social Security (“Commissioner”) that denied 21 Plaintiff’s claim for disability insurance benefits and supplemental security income. ECF 22 No. 1. For the reasons set forth below, the Court GRANTS Plaintiff’s renewed application 23 for leave to proceed IFP, but DISMISSES WITHOUT PREJUDICE the complaint. 24 All parties instituting any civil action, suit, or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 27 the entire fee only if he or she is granted leave to proceed IFP pursuant to 28 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A 1 20cv1771-LL Case 3:20-cv-01771-LL Document 8 Filed 11/16/20 PageID.25 Page 2 of 4 1 federal court may authorize the commencement of an action without the prepayment of 2 fees if the party submits an affidavit, including a statement of assets, showing that he or 3 she is unable to pay the required filing fee. 28 U.S.C. § 1915(a). 4 The determination of indigency falls within the district court’s discretion. California 5 Men's Colony, Unit II Men's Advisory Council v. Rowland, 939 F.2d 854, 858 6 (9th Cir. 1991), rev'd on other grounds, Rowland v. California Men's Colony, Unit II Men's 7 Advisory Council, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing 8 court to exercise its sound discretion in determining whether the affiant has satisfied the 9 statute's requirement of indigency.”). It is well-settled that a party need not be completely 10 destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 11 (1948). “An affidavit in support of an IFP application is sufficient where it alleges that the 12 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 13 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). However, 14 “the same even-handed care must be employed to assure that federal funds are not 15 squandered to underwrite, at public expense, either frivolous claims or the remonstrances 16 of a suitor who is financially able, in whole or in material part, to pull his own oar.” 17 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Finally, the facts as to the 18 litigant’s indigency must be stated “with some particularity, definiteness and certainty.” 19 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citation omitted). 20 Here, Plaintiff submitted an affidavit indicating that her sole source of income is 21 from public assistance in the amount of $190 a month. ECF No. 7 at 1–2. Plaintiff attests 22 that she has no assets or savings. Id. at 2-4. Based on the above, the Court concludes that 23 Plaintiff’s application demonstrates she is unable to pay the requisite fees and costs. 24 Accordingly, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis. 25 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 26 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 27 may be granted,” or “seeks monetary relief against a defendant who is immune from such 28 relief.” 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845, 845 2 20cv1771-LL Case 3:20-cv-01771-LL Document 8 Filed 11/16/20 PageID.26 Page 3 of 4 1 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 2 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (noting that 3 “section 1915(e) not only permits but requires a district court to dismiss an in forma 4 pauperis complaint that fails to state a claim”). 5 All complaints must contain a “short and plain statement of the claim showing that 6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citation omitted). In Social Security appeals, judges in this circuit have found that a 10 complaint challenging the denial of benefits must contain the following basic requirements 11 to satisfy the Court’s screening: 12 18 First, the plaintiff must establish that [s]he has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 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 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 identifying the nature of the plaintiff's disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. Montoya v. Colvin, No. 216CV00454RFBNJK, 2016 WL 890922, at 19 (D. Nev. Mar. 8, 2016). 13 14 15 16 17 *2 20 Here, Plaintiff appeals the Commissioner’s decision denying Plaintiff’s claim for 21 disability insurance benefits and supplemental security income. ECF No. 1. The Court 22 assumes that the nature of Plaintiff’s disability is what the administrative law judge 23 (“ALJ”) found to be medically determinable impairments—asthma, osteoarthritis, and 24 depression/anxiety—because that is the only description of the nature of Plaintiff’s 25 disability in the complaint. See id. at 2–3. However, Plaintiff fails to state when she became 26 disabled, stating only that Plaintiff “is, and at all times relevant to this action, disabled as 27 that term is defined in the Social Security Act.” Id. at 2. As set forth above, this omission 28 renders the complaint insufficient to survive the sua sponte screening required by 3 20cv1771-LL Case 3:20-cv-01771-LL Document 8 Filed 11/16/20 PageID.27 Page 4 of 4 1 28 U.S.C. § 1915(e)(2). See Montoya v. Colvin, 2016 WL 890922, at *2. Accordingly, the 2 Court 3 MAY FILE an amended complaint on or before December 4, 2020. Should Plaintiff fail 4 to file an amended complaint within the time provided, the Court may enter a final order 5 dismissing this civil action with prejudice. 6 7 DISMISSES WITHOUT PREJUDICE Plaintiff’s complaint. Plaintiff IT IS SO ORDERED. Dated: November 16, 2020 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 20cv1771-LL

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