1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23cv601-BLM 11 MICHAEL DAVID ALTAMIRANO,
12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN 13 v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS 14 KILOLO KIJAKAZI, Acting Commissioner of
Social Security, 15 Defendant. [ECF No. 2] 16
17 18 The instant matter was initiated on April 4, 2023, when Plaintiff filed a complaint seeking 19 review of the Commissioner’s decision to deny Plaintiff’s “application for Social Security Disability 20 Insurance benefits for lack of disability.” ECF No. 1 at 1. That same day, Plaintiff filed an 21 Application to Proceed In District Court Without Prepaying Fees or Costs. ECF No. 2. On April 22 6, 2023, the Court denied Plaintiff’s motion without prejudice and dismissed Plaintiff’s complaint 23 with leave to amend because Plaintiff’s complaint failed to state a claim for relief. ECF No. 4. 24 On April 7, 2023, Plaintiff filed an amended complaint. ECF No. 5. 25 Having reviewed Plaintiff’s amended complaint and motion, the Court GRANTS Plaintiff’s 26 motion to proceed in district court without prepaying fees or costs and finds that Plaintiff’s 27 amended complaint is sufficient to survive screening. 1 Application to Proceed in District Court without Prepaying Fees or Costs 2 All parties instituting any civil action, suit, or proceeding in a district court of the United 3 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. 4 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he 5 is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 6 [A]ny court of the United States may authorize the commencement, prosecution 7 or defense of any suit, action or proceeding ... without prepayment of fees or 8 security therefor, by a person who submits an affidavit that includes a statement 9 of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 10 11 The determination of indigency falls within the district court's discretion. California Men's 12 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 13 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 14 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 15 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 16 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. 17 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 18 poverty pay or give security for costs ... and still be able to provide for himself and dependents 19 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 20 be employed to assure that federal funds are not squandered to underwrite, at public expense, 21 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 22 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 23 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 24 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 25 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 26 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 27 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee). 1 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 2 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status. 3 According to his affidavit in support of his application, Plaintiff is not employed, has no income, 4 and receives $109.75 per month in food stamps and $3,500.00 per school semester through his 5 Pell Grant disbursement.1 Id. Plaintiff has $800.00 in a checking account and $300 in a savings 6 account. Id. Plaintiff owns a home worth $700,000.00 but notes that his aunt lives in the home 7 and pays the mortgage. Id. at 3. Plaintiff does not own any other assets. Id. Plaintiff’s monthly 8 expenses approximately include $109.25 for food, $50.00 for clothes, $40.00 for laundry and 9 dry cleaning, $100.00 for transportation, $50.00 for recreation and entertainment, $35.00 for 10 his credit card payment, and $100.00 for school expenses, for a total of $484.25 in monthly 11 expenses. Id. at 4-5. Plaintiff does not expect any major changes to his monthly income, 12 expenses, assets, or liabilities over the next twelve months. Id. at 5. Plaintiff states that he 13 “received a Pell grant for school of $3,500.00 in January” and “will receive another payment in 14 August. The monthly for [eight] months of the pell grant [sic] is $437.50/month[,]” which he 15 “use[s] [] for school expenses.” Id. at 5. Based on the foregoing, the Court finds that Plaintiff 16 has established that he is unable to pay the $402 filing fee without impairing his ability to pay 17 for life’s necessities. See Adkins, 335 U.S. at 339-40. Accordingly, the Court GRANTS Plaintiff’s 18 Application to Proceed in District Court without Prepaying Fees or Costs. 19 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 20 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 21 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 22 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 23 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 24 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 25 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 26
27 1 Plaintiff indicates that he receives two $3,500.00 Pell Grant disbursements per year, which 1 1126–27. 2 To survive, all complaints must contain “a short and plain statement of the claim showing 3 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 4 announces does not require ‘detailed factual allegations,’ but it demands more than an 5 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 6 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23cv601-BLM 11 MICHAEL DAVID ALTAMIRANO,
12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN 13 v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS 14 KILOLO KIJAKAZI, Acting Commissioner of
Social Security, 15 Defendant. [ECF No. 2] 16
17 18 The instant matter was initiated on April 4, 2023, when Plaintiff filed a complaint seeking 19 review of the Commissioner’s decision to deny Plaintiff’s “application for Social Security Disability 20 Insurance benefits for lack of disability.” ECF No. 1 at 1. That same day, Plaintiff filed an 21 Application to Proceed In District Court Without Prepaying Fees or Costs. ECF No. 2. On April 22 6, 2023, the Court denied Plaintiff’s motion without prejudice and dismissed Plaintiff’s complaint 23 with leave to amend because Plaintiff’s complaint failed to state a claim for relief. ECF No. 4. 24 On April 7, 2023, Plaintiff filed an amended complaint. ECF No. 5. 25 Having reviewed Plaintiff’s amended complaint and motion, the Court GRANTS Plaintiff’s 26 motion to proceed in district court without prepaying fees or costs and finds that Plaintiff’s 27 amended complaint is sufficient to survive screening. 1 Application to Proceed in District Court without Prepaying Fees or Costs 2 All parties instituting any civil action, suit, or proceeding in a district court of the United 3 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. 4 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he 5 is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 6 [A]ny court of the United States may authorize the commencement, prosecution 7 or defense of any suit, action or proceeding ... without prepayment of fees or 8 security therefor, by a person who submits an affidavit that includes a statement 9 of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 10 11 The determination of indigency falls within the district court's discretion. California Men's 12 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 13 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 14 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 15 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 16 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. 17 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 18 poverty pay or give security for costs ... and still be able to provide for himself and dependents 19 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 20 be employed to assure that federal funds are not squandered to underwrite, at public expense, 21 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 22 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 23 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 24 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 25 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 26 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 27 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee). 1 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 2 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status. 3 According to his affidavit in support of his application, Plaintiff is not employed, has no income, 4 and receives $109.75 per month in food stamps and $3,500.00 per school semester through his 5 Pell Grant disbursement.1 Id. Plaintiff has $800.00 in a checking account and $300 in a savings 6 account. Id. Plaintiff owns a home worth $700,000.00 but notes that his aunt lives in the home 7 and pays the mortgage. Id. at 3. Plaintiff does not own any other assets. Id. Plaintiff’s monthly 8 expenses approximately include $109.25 for food, $50.00 for clothes, $40.00 for laundry and 9 dry cleaning, $100.00 for transportation, $50.00 for recreation and entertainment, $35.00 for 10 his credit card payment, and $100.00 for school expenses, for a total of $484.25 in monthly 11 expenses. Id. at 4-5. Plaintiff does not expect any major changes to his monthly income, 12 expenses, assets, or liabilities over the next twelve months. Id. at 5. Plaintiff states that he 13 “received a Pell grant for school of $3,500.00 in January” and “will receive another payment in 14 August. The monthly for [eight] months of the pell grant [sic] is $437.50/month[,]” which he 15 “use[s] [] for school expenses.” Id. at 5. Based on the foregoing, the Court finds that Plaintiff 16 has established that he is unable to pay the $402 filing fee without impairing his ability to pay 17 for life’s necessities. See Adkins, 335 U.S. at 339-40. Accordingly, the Court GRANTS Plaintiff’s 18 Application to Proceed in District Court without Prepaying Fees or Costs. 19 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 20 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 21 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 22 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 23 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 24 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 25 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 26
27 1 Plaintiff indicates that he receives two $3,500.00 Pell Grant disbursements per year, which 1 1126–27. 2 To survive, all complaints must contain “a short and plain statement of the claim showing 3 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 4 announces does not require ‘detailed factual allegations,’ but it demands more than an 5 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 6 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 7 “recitals of elements of a cause of action, supported by mere conclusory statements do not 8 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning the 9 pleaded “factual content [] allows the court to draw the reasonable inference that the defendant 10 is liable for the misconduct alleged.” Id. at 678 (2009) (quoting Twombly, 550 U.S. at 556, 11 570)). “When there are well-pleaded factual allegations, a court should assume their veracity, 12 and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. 13 at 679. Social security appeals are not exempt from the general screening requirements for IFP 14 cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. Mar. 8, 15 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)). 16 In the context of a social security appeal, courts within the Ninth District have established 17 four elements necessary for a complaint to survive a screening: 18 First, the plaintiff must establish that []he has exhausted h[is] administrative 19 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 20 within sixty days after notice of a final decision. Second, the complaint must 21 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 []he 22 became disabled. Fourth, the complaint must contain a plain, short, and concise 23 statement identifying the nature of the plaintiff's disagreement with the 24 determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 25 26 Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL 27 890922 at *2). With regard to element four, a complaint is insufficient if it merely states that 1 ||the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012 2 ||WL 2521753 at *3 (‘Every plaintiff appealing an adverse decision of the Commissioner believes 3 || that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege 4 || facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead, 5 ||the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the 6 || Commissioner's decision was wrong.” Id. at *2. 7 After reviewing the amended complaint, the Court finds that Plaintiff has established the 8 || four elements necessary for a complaint to survive sua sponte screening. Plaintiff states that 9 resides in Oceanside, California and received a final decision from the Administrative Law 10 || Judge (“ALJ”) on February 3, 2023. ECF No. 5 at 1, 2. Plaintiff also states that he “suffers from 11 ||severe impairments which include Tendonitis of the shoulders and residuals of right shoulder 12 ||surgery; residuals of cervical fusion; degenerative changes of the lumbar spine; a history of 13 || quadriparesis of the right arm and leg; and obesity.” Id. at 2. Plaintiff clearly states his 14 || disagreement with the determination made by the Social Security Administration by alleging the 15 || decision was not supported by substantial evidence because she “did not resolve or explain 16 conflicts with the jobs the ALJ found and the Dictionary of Occupational Titles (DOT). 17 || Additionally, the ALJ also rejected favorable opinions based on vague ‘improvement’ in condition 18 || which was not a contradiction to the opinions.” Id. at 3. 19 CONCLUSION 20 Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs is 21 || GRANTED. 22 IT IS SO ORDERED. 23 Dated: 4/13/2023 lobe Mager 24 Hon. Barbara L. Major United States Maqistrate Judde 25 26 27 28