Serrano v. Social Security Administration

Filing 6

ORDER: 1. Denying Plaintiffs Motion to Proceed In Forma Pauperis 2. Dismissing Plaintiffs Complaints Without Prejudice (Re ECF No. 2 ) Amended Pleadings due by 3/31/2025. Signed by Magistrate Judge Michelle M. Pettit on 3/10/2025. (All non-registered users served via U.S. Mail Service)(rxc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALFONSO S., 1
Plaintiff,

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v.

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SOCIAL SECURITY
ADMINISTRATION,

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Case No.: 24-cv-02354-MMP
ORDER:
1. DENYING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS
2. DISMISSING PLAINTIFF’S
COMPLAINTS WITHOUT
PREJUDICE

Defendant.

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[ECF No. 2]

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On December 16, 2024, Alfonso S. (“Plaintiff”) filed this action pro se. Plaintiff

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consented to Magistrate Judge jurisdiction. [ECF No. 4.] As best the Court can tell, Plaintiff

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In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government
parties by using their first name and last initial.
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disputes he owes Defendant several thousand dollars for a period during which he received

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Supplemental Security Income (“SSI”) despite being ineligible. [ECF No. 1.] Plaintiff also

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filed a motion for leave to proceed in forma pauperis (“IFP”). [ECF No. 2.] The Court

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DENIES the motion for leave to proceed IFP without prejudice and DISMISSES the

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complaint(s)2 without prejudice.

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I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

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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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$405.3 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to

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prepay the filing fee only if the plaintiff is granted leave to proceed IFP pursuant to 28

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

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The determination of indigency falls within the district court’s discretion. California

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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds

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by, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise

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its sound discretion in determining whether the affiant has satisfied the statute’s

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requirement of indigency.”). A party need not be completely destitute to proceed IFP.

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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the

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requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states

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that one cannot because of his poverty pay or give security for costs . . . and still be able to

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provide himself and dependents with the necessities of life.” Id. at 339 (internal quotation

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marks omitted). At the same time, “the same even-handed care must be employed to assure

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that federal funds are not squandered to underwrite, at public expense, either frivolous

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Though docketed as one entry, Plaintiff has improperly filed two complaints in this
action. [ECF Nos. 1, 1-2.]
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In addition to the $350.00 statutory fee, civil litigants must pay an additional
administrative fee of $55.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of
Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55.00
administrative fee does not apply to persons granted leave to proceed IFP. Id.
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claims or the remonstrances of a suitor who is financially able, in whole or in material part,

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to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). The facts

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as to the affiant’s poverty must be stated “with some particularity, definiteness and

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certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

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Plaintiff has not satisfied his burden of demonstrating he is entitled to IFP status.

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First, his IFP application is internally inconsistent. According to his application, Plaintiff’s

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total monthly income is $1,083.00. [ECF No. 2 ¶ 1.] Plaintiff represents he does not expect

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any changes to his monthly income during the next twelve months. [ECF No. 2 ¶ 9.]

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However, his application also states he expects his next month’s income will be $0.00,

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which would be a change. [ECF No. 2 ¶ 1.]

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Second, Plaintiff’s IFP application appears to be inconsistent with his complaints.

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[ECF Nos. 2, 1.] Plaintiff has filed two complaints in this action. [ECF Nos. 1, 1-2.] In one

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complaint, Plaintiff alleges as of December 2019, he was receiving $715.72 per month in

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SSI benefits. [ECF No. 1 at 6.] However, in his IFP application, Plaintiff says he currently

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receives $577 per month in SSI benefits. [ECF No. 2 ¶ 1.] Plaintiff claims Defendant is

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currently wrongfully withholding $118.29 from his SSI benefits each month, but $715.72

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minus $118.29 does not equal $577.00. Moreover, the Court can reasonably assume

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Plaintiff’s SSI benefit has increased over the last five years, considering SSI increases

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yearly to accommodate cost of living increases.4 Plaintiff’s unexplained decrease in SSI

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benefits over the past five years gives the Court pause.

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Based on the information currently before the Court, the Court finds Plaintiff has not

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met his burden of demonstrating “with some particularity, definiteness and certainty” he is

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entitled to IFP status. See McQuade, 647 F.2d at 940. Thus, the Court DENIES Plaintiff’s

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motion without prejudice.

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The Cost-of-Living Adjustments for the period of 2020 through 2024 were as follows:
1.3%, 5.9%, 8.7%, 3.2%, and 2.5%. SOCIAL SECURITY ADMINISTRATION,
https://www.ssa.gov/oact/cola/colaseries.html (last visited Feb. 3, 2025).
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II.

SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2) AND § 1915(a)

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Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are

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subject to a mandatory sua sponte screening by the Court. Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000); Norris v. Kijakazi, No. 23-cv-432-BLM, 2023 WL 2518870, at *2

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(S.D. Cal. Mar. 13, 2023). A complaint should be dismissed sua sponte if it is (1) “frivolous

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or malicious;” (2) “fails to state a claim on which relief may be granted;” or (3) “seeks

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monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. §

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1915(e)(2); Lopez, 203 F.3d at 1126. Complaints in social security cases are not exempt

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from this screening requirement. See 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.”); Giselle N.

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v. Kijakazi, No. 23-cv-04293-PHK, 2023 WL 6307947, at *1 (N.D. Cal. Sept. 26, 2023).

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Effective December 1, 2022, the Federal Rules of Civil Procedure were amended to

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include the Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405(g)

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(“Supplemental Rules”). The Supplemental Rules govern social security actions and

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“establish a simplified procedure that recognizes the essentially appellate character of

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actions that seek only review of an individual’s claims on a single administrative record. .

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. ” Fed. R. Civ. P. Supp. Soc. Sec. R. 2022 Advisory Committee’s Note.

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Supplement Rule 2(b)(1) provides that the complaint must:

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(A) state that the action is brought under § 405(g);

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(B) identify the final decision to be reviewed, including any identifying designation

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provided by the Commissioner with the final decision;

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(C) state the name and the county of residence of the person for whom benefits are

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claimed;

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(D) name the person on whose wage record benefits are claimed; and

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(E) state the type of benefits claimed.

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Fed. R. Civ. P. Supp. Soc. Sec. R. 2(b)(1). “The elements of the claim for review are

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adequately pleaded under Rule 2(b)(1)(B), (C), (D), and (E).” Id., 2022 Advisory

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Committee’s Note.
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Plaintiff meets some, but not all, of the Supplemental Rule 2(b)(1) requirements—

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and only if the Court cobbles together his two complaints. If the Court reviews both

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complaints together, Plaintiff potentially identifies the final decision to be reviewed as a

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denial from an Administrative Law Judge (“ALJ”) decision on May 8, 2024, which the

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Appeals Council denied further review; identifies Plaintiff by name as the person on whose

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wage record benefits are claimed; states Plaintiff lives in Imperial County, California; and

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identifies the type of benefits claimed as supplemental security income benefits. [ECF No.

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1 at 1, 5–6; ECF No. 1-2 at 4.]

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But Plaintiff’s complaints do not expressly state this action is brought under §

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405(g). While understandable given Plaintiff’s pro se status, this requirement is of

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importance here when it is unclear Plaintiff intends to bring a case under 42 U.S.C. §

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405(g). There are three factors obfuscating Plaintiff’s intention: (1) he filed multiple

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complaints listing different defendants throughout, (2) he does not identify what laws or

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rights he claims were violated, and (3) it is unclear whether he takes issue with the amount

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to be withheld, when withholding commenced, or some other procedural deficit in the

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recoupment process.

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First, Plaintiff has filed two complaints. The first is a regular “Complaint for a Civil

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Case.” [ECF No. 1 at 1.] The second is a “Complaint for Review of a Social Security

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Disability or Supplemental Security Income Decision.” [ECF No. 1-2 at 1.] Filing two

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complaints in a single action—absent amendment—is impermissible. Additionally, the two

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complaints create ambiguity as to whom Plaintiff is suing. In the first complaint, Plaintiff

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names the defendant as “Social Security Administration in El Centro, CA” on page 1, as

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“Social Security Administration” on pages 2 and 8, and as “Social Security Administration

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Representatives in El Centro, CA” on pages 5 and 6. In the second (Social Security)

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complaint, Plaintiff names Defendant as “Jonathan Dyer.” [ECF No. 1-2 at 1, 2.] Jonathan

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Dyer is not, nor has he ever been, the Commissioner of the Social Security Administration.

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Plaintiff will need to file a single amended complaint to bring his claim(s) before the Court,

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and he will need to clearly state who he intends to sue.
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Second, Plaintiff does not identify what laws or rights he claims were violated.

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Because Plaintiff has filed a “Complaint for Review of a Social Security Disability or

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Supplemental Security Income Decision,” one might assume he seeks to challenge the

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ALJ’s decision. [ECF No. 1-2 at 1.] Plaintiff has included his Notice of Appeals Council

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Action, which also suggests he wants the Court to review the ALJ’s decision. [ECF No. 1-

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2 at 4.] Yet Plaintiff has not named the Commissioner as a defendant, nor has he identified

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any error in the ALJ’s decision.

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Moreover, the only factual context for his claims comes from his regular civil

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complaint. [ECF No. 1.] Both Plaintiff’s claims in that complaint are based on

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“administrative negligence, and or [sic] their clerical error, confusion, [and] omission by

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not duly following up.” [ECF No. 1 at 5, 6.] Plaintiff attributes the “administrative

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negligence” disrupting his receipt of benefits to “The Social Security Administration

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Representatives in el [sic] Centro, CA.” [Id.] From this, it appears Plaintiff does not want

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to challenge the ALJ’s decision but rather the actions of individual employees of the El

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Centro Social Security office. [ECF No. 1-2.]

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Under 42 U.S.C. § 405(h), “[n]o findings of fact or decision of the Commissioner of

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Social Security shall be reviewed by any person, tribunal, or governmental agency except

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as herein provided,” and 42 U.S.C. § 405(g) designates “the district court[s] of the United

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States” as the proper place for such review. But this suit has not been brought against the

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Commissioner, and the Court’s authority to hear a benefits eligibility-based

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“administrative negligence” claim against unnamed, individual employees of the El Centro

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office of the Social Security Administration is unclear. See Keesing v. Apfel, 124 F. Supp.

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2d 134, 135 (N.D.N.Y. 2000) (finding “[t]he only proper defendant in an action

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under section 405(g) is the Commissioner of Social Security” and dismissing the plaintiff’s

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claims against the New York Region of the Social Security Administration and District

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Manager of the Syracuse Local Office of the Social Security Administration); Balser v.

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Dep’t of Just., 327 F.3d 903, 907 (9th Cir. 2003) (“In sovereign immunity analysis, any

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lawsuit against an agency of the United States or against an officer of the United States in

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his or her official capacity is considered an action against the United States.”).

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Third, the parameters of Plaintiff’s claims are unclear. Plaintiff either takes issue

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with the amount to be withheld, when withholding commenced, or perhaps some other

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procedural issue. Plaintiff says “SSA R[e]presentatives starting on [J]une 2024, should not

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have hold [sic] back such monthly amount of money, because the APPEALS Council took

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the denial decision until October 7, 2024.” [ECF No. 1 at 6.] But Plaintiff also recounts a

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conversation he had with “[t]he SSA Representative” wherein Plaintiff said he should not

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owe anything “because Claimant does not recognize any debt with the Social Security

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Administration.” [Id.] It is unclear to the Court whether Plaintiff disputes owing any debt

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to the Social Security Administration or whether he thinks the Administration’s method or

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timing of recoupment was improper.

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Courts must liberally construe pro se pleadings. Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Yet, the Court cannot

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manufacture a claim for Plaintiff. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673

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F.2d 266, 268 (9th Cir. 1982). There is too much ambiguity in this case for the Court to

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allow it to pass screening. There are two complaints, inconsistent defendants, a dearth of

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information regarding what laws or rights Plaintiff claims were violated, and genuine

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questions about this Court’s jurisdiction.
After reviewing Plaintiff’s complaints pursuant to its sua sponte screening, the Court

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finds Plaintiff’s complaints insufficient to survive a § 1915(a) screening.

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III.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED:

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1.

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The Court DENIES without prejudice Plaintiff’s Motion for Leave to

Proceed In Forma Pauperis [ECF No. 2].
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On or before March 31, 2025, Plaintiff must either (1) pay the requisite filing

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fee or (2) file a renewed motion to proceed in forma pauperis providing full and accurate

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information.
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3.

The Court DISMISSES without prejudice Plaintiff’s complaints [ECF No.

1] with leave to amend.
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On or before March 31, 2025, Plaintiff must file a single amended complaint

consistent with this Order.
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Failure to timely file an amended complaint, to comply with this Order, or to

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remedy the deficiencies identified herein may result in this case being dismissed without

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further notice.

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IT IS SO ORDERED.
Dated: March 10, 2025

_____________________________________________

HON. MICHELLE M. PETTIT
United States Magistrate Judge

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