Blount v. Kijakazi

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 21-cv-0679-BLM 9 JASON BLOUNT,

10 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S 11 v. APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT 12 ANDREW SAUL, COMMISSIONER OF SOCIAL PREPAYING OF FEES OR COSTS AND SECURITY, 13 DISMISSING COMPLAINT WITH LEAVE Defendant. TO AMEND 14 [ECF No. 2] 15

16 17 On April 16, 2021, Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) of the Social 18 Security Act (“Act”) seeking judicial review of the administrative decision of the Commissioner 19 of the Social Security Administration (“Defendant” or “Commission”), which denied Plaintiff’s 20 application for the supplemental security income (“SSI”) benefits. ECF No. 1. That same day, 21 Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs. ECF 22 No. 2. 23 Having reviewed the complaint and motion, the Court finds that Plaintiff’s complaint does 24 not sufficiently state a claim for relief and has not satisfied his burden of demonstrating that he 25 is entitled to (“IFP”) status. Accordingly, Plaintiff’s Application to Proceed in 26 District Court without Prepaying Fees or Costs is DENIED WITHOUT PREJUDICE, and the 27 complaint is DISMISSED WITH LEAVE TO AMEND. 28 /// 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 5 she 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 of all assets such [person] possesses that the person is unable to pay such fees or 9 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 $60 filing 28 fee). Moreover, the facts as to the affiant's poverty must be stated “with some particularity, 1 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 2 Plaintiff has not satisfied his burden of demonstrating that he is entitled to IFP status. 3 According to his affidavit in support of application, Plaintiff is employed making $288 per month. 4 ECF No. 2. He states that he receives food stamps and help from the state and California Victim 5 Compensation Board (“CalVCB”), but does not provide the amount of those benefits. Id., at 5. 6 Plaintiff states that he has two dependent children but does not state whether he is married, 7 whether the children live with him, and whether he receives (or pays) child support or alimony. 8 Id., at 1-5. If Plaintiff is married, he has not provided any of the required information regarding 9 his spouse’s assets. Id. Plaintiff does not state whether he has a checking or savings account 10 or how much money is in those accounts. Id., at 2. Plaintiff identifies car and home expenses 11 but does not state whether he owns a vehicle or home and does not provide the required 12 information regarding those assets. Id., at 4. Based on the foregoing, the Court finds that 13 Plaintiff has not established that he is unable to pay the $400 filing fee. Accordingly, Plaintiff’s 14 motion to proceed IFP is DENIED WITHOUT PREJUDICE. If Plaintiff files an amended 15 Application, he must answer all questions in accordance with the instructions set forth on the 16 first page of the form. 17 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 18 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 19 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 20 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 21 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 22 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 23 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 24 1126–27. 25 To survive, all complaints must contain “a short and plain statement of the claim showing 26 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 27 announces does not require ‘detailed factual allegations,’ but it demands more than an 28 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 1 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 2 “recitals of elements of a cause of action, supported by mere conclusory statements do not 3 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the 4 pleaded factual content allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. 6 at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their 7 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 8 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements 9 for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 10 Mar. 8, 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)). 11 In the context of a social security appeal, courts within the Ninth District have established 12 four elements necessary for a complaint to survive a screening: 13 First, the plaintiff must establish that she has exhausted her administrative 14 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 15 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 16 state the nature of the plaintiff's disability and when the plaintiff claims she became 17 disabled. Fourth, the complaint must contain a plain, short, and concise statement 18 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. 19 20 Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL 21 890922 at *2). With regard to element four, a complaint is insufficient if it merely states that 22 the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012 23 WL 2521753 at *3 (“Every plaintiff appealing an adverse decision of the Commissioner believes 24 that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege 25 facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead, 26 the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the 27 Commissioner’s decision was wrong.” Id. at *2. 28 After reviewing the amended complaint, the Court finds that Plaintiff has adequately 1 || alleged facts sufficient to survive sua sponte screening as to the second, third, and fourth 2 ||}elements. Plaintiff states that he resides within the jurisdictional boundaries of this Court in San 3 || Diego, CA. ECF No. 1-1, at 1. Plaintiff also sufficiently states the nature of his disability and the 4 ||date he became disabled. Plaintiff advises this Court that he became disabled on August 3, 5 and that he has impairments which include “radio sensory neuropathy in [his] left arm and 6 ||back spasms in [his] center and right side of [his] back.” ECF No. 1, at 2. Further, Plaintiff 7 |{includes a plain, short, and concise statement identifying the nature of his disagreement with 8 || the determination made by the Social Security Administration that shows the Plaintiff is entitled 9 || to relief. Plaintiff advises this Court that, “[he] was denied by the SSA” because “some random 10 || Lady (not a medical professional) over a telephonic court hearing call” stated that he could “work 11 || using both [his] arms or just one” and that he “begged [sic] to differ” because “some days [he] 12 || can't left [sic] [his] left arm for a few hours at a time due to the pain [being] so great.” Id. 13 Plaintiff's complaint, however, does not satisfy the first element. Plaintiff has not 14 || established that he exhausted his administrative remedies pursuant to 42 U.S.C § 405(g) or that 15 || this civil action was commenced within sixty days after notice of a final decision from the 16 ||Commissioner. ECF No. 1. Accordingly, Plaintiff's complaint is DISMISSED WITH LEAVE TO 17 || AMEND. If Plaintiff files an amended complaint, he must add information establishing that he 18 || exhausted his administrative remedies pursuant to 42 U.S.C § 405(g) and that this civil action 19 || was commenced within sixty days after notice of a final decision from the Commissioner. 20 IT IS SO ORDERED. 21 ||Dated: 4/21/2021 iy, be He wr 22 Hon. Barbara L. Major United States Maqistrate Judde 23 24 25 26 27 28