Diggs v. Kijakazi

• Court: District Court, S.D. California
• Decided: January 3, 2023
• Docket: 3:22-cv-02051
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SETH D., Case No.: 22-cv-02051-JLB

12 Plaintiff, ORDER: 13 v. (1) DENYING WITHOUT 14 KILOLO KIJAKAZI, Acting PREJUDICE MOTION FOR LEAVE Commissioner of Social Security, 15 TO PROCEED IN FORMA Defendant. PAUPERIS; AND 16

17 (2) SCREENING AND DISMISSING COMPLAINT PURSUANT TO 18 28 U.S.C. § 1915(e)(2) 19 [ECF Nos. 1, 2] 20

21 22 Plaintiff Seth D. (“Plaintiff”) has filed a Complaint against the Commissioner of 23 Social Security (the “Commissioner”) seeking judicial review of the Commissioner’s final 24 decision denying his applications for child’s insurance benefits and supplemental security 25 income (“SSI”). (ECF No. 1 ¶ 6.) 26 Presently before the Court is Plaintiff’s Motion for Leave to proceed In Forma 27 Pauperis (“IFP Motion”). (ECF No. 2.) For the reasons set forth below, the Court 28 DENIES WITHOUT PREJUDICE Plaintiff’s IFP Motion and sua sponte DISMISSES 1 the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon 2 which relief may be granted. 3 I. IFP MOTION 4 A. Legal Standard 5 All parties instituting a civil action, suit, or proceeding in a district court of the 6 United States must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite 7 a party’s failure to pay the filing fee only if the party is granted leave to proceed in forma 8 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). Section 1915(a)(1) provides that: 9 any court of the United States may authorize the commencement, prosecution 10 or defense of any suit, action or proceeding . . . without prepayment of fees or 11 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 12 such fees or give security therefor. 13 14 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 15 assets to warrant IFP status, the determination of indigency falls within the district court’s 16 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 17 1915 typically requires the reviewing court to exercise its sound discretion in determining 18 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 19 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 20 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 21 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 22 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 23 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 24 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP status must allege poverty with 25 some particularity, definiteness[,] and certainty.” Escobedo, 787 F.3d at 1234 (internal 26 quotation marks and citation omitted). 27 /// 28 /// 1 B. Discussion 2 Here, Plaintiff has not paid the $4021 filing fee required to maintain a civil action in 3 this District and has instead moved to proceed IFP. (ECF No. 2.) Plaintiff attests to the 4 following under penalty of perjury in his affidavit of assets: He is not incarcerated, but has 5 no wages or income, does not own an automobile, real estate, or other thing of value, and 6 does not have any monthly expenses or debts. (Id. at 1–2.) Plaintiff does not indicate 7 whether he has any money in a checking or savings account. (Id. at 2.) 8 In his Complaint, Plaintiff states that he is a “competent adult,” but his IFP Motion 9 is devoid of any information indicating how he supports himself or how much money he 10 has available. (ECF No. 1 ¶ 1.) The Court therefore finds that Plaintiff’s affidavit of assets 11 insufficiently demonstrates that he lacks the financial resources to pay the $402 filing fee 12 without causing undue financial hardship. Accordingly, Plaintiff’s IFP Motion is denied 13 without prejudice. 14 II. SCREENING OF COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) 15 A. Legal Standard 16 Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject 17 to a mandatory review by the Court and sua sponte dismissal if it fails to state a claim upon 18 which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). “[S]ection 1915(e) not only 19 permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” 20 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (emphasis added). Complaints in 21 social security appeal cases are not exempt from § 1915(e)’s screening requirement. 22 Hoagland v. Astrue, No. 1:12–cv–00973–SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 23 24 25 1 See 28 U.S.C. § 1914(a) (“The clerk of each district shall require the parties 26 instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $350[.]”); CASD Fee Schedule, https://www.casd.uscourts.gov/_assets/pdf/courtinfo 27 /Fees%20of%20the%20U.S.%20District%20Court%20(CASD).pdf (effective May 24, 28 2021) (imposing a $52 administrative fee for a civil action, suit, or proceeding). 1 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of right, such as 2 an appeal of the Commissioner’s denial of social security disability benefits.”); cf. Calhoun 3 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 4 are not limited to prisoners.”). 5 Under Rule 8 of the Federal Rules of Civil Procedure, all complaints must contain 6 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 7 R. Civ. P. 8(a)(2). Detailed factual allegations are not required in a complaint, but 8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a 10 complaint in a social security disability appeal may differ in some ways from complaints 11 in other civil cases, it is “not exempt from the general rules of civil pleading.” Hoagland, 12 2012 WL 2521753, at *2. Courts in this District and other districts in the Ninth Circuit 13 look for four basic requirements when screening a social security disability complaint for 14 failure to state a claim: 15 First, the plaintiff must establish that he has exhausted her administrative 16 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 17 complaint must indicate the judicial district in which the plaintiff resides. 18 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 19 a plain, short, and concise statement identifying the nature of the plaintiff’s 20 disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 21 22 Montoya v. Colvin, No. 2:16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. Mar. 23 8, 2016). 24 Expanding on the fourth requirement, a complaint fails to state a claim if it simply 25 states that the Commissioner was wrong in denying a plaintiff benefits, for “[e]very 26 plaintiff appealing an adverse decision of the Commissioner believes that the 27 Commissioner was wrong.” Hoagland, 2012 WL 2521753, at *3. Thus, “a social security 28 complaint that merely parrots the standards used in reversing or remanding a case is not 1 sufficient to withstand a screening pursuant to [§] 1915(e).” Montoya, 2016 WL 890922, 2 at *2. Instead, “[a] complaint appealing the Commissioner’s denial of disability benefits 3 must [include] a brief statement of facts setting forth the reasons why the Commissioner’s 4 decision was wrong.” Hoagland, 2012 WL 2521753, at *2. 5 B. Discussion 6 Applying these four basic requirements to the Complaint here, the Court finds that 7 the Complaint is insufficient with respect to the third and fourth requirements. The 8 Complaint fails to allege the nature of Plaintiff’s disability and when Plaintiff claims he 9 became disabled. The Complaint also fails to allege any specific reasons for why the 10 decision of the Administrative Law Judge (“ALJ”) should be reversed or remanded. 11 Instead, the Complaint “merely parrots” the standard of judicial review2 by alleging that 12 there is no substantial evidence in the record to support the Commissioner’s finding that 13 Plaintiff is not disabled. (ECF No. 1 ¶ 10.) This boilerplate statement does not identify 14 the nature of Plaintiff’s disagreement with the ALJ’s decision. See Montoya, 2016 WL 15 890922, at *2. Accordingly, the Court is obligated to sua sponte dismiss the Complaint 16 for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 17 /// 18 //// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25

26 2 A court may set aside the “Commissioner’s denial of benefits when the ALJ’s 27 findings are based on legal error or are not supported by substantial evidence in the record 28 as a whole.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). I Hl. CONCLUSION 2 For the reasons stated above, the Court hereby: 3 (1) DENIES WITHOUT PREJUDICE Plaintiff's IFP Motion (ECF No. 2); and 4 (2) sua sponte DISMISSES the Complaint (ECF No. 1) without prejudice and 5 || with leave to amend for failure to state a claim upon which relief may be granted. Plaintiff 6 || shall have until January 20, 2023 to file an amended complaint that cures the deficiencies 7 || set forth above. 8 IT IS SO ORDERED. 9 Dated: January 3, 2023 . 10 i Ub handsr 11 n. Jill L. Burkhardt D ited States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28