Donahue v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PARKER D., Case No.: 3:19-cv-01818-AHG 12 Plaintiff, ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 13 v.

14 ANDREW SAUL, Commissioner of [ECF No. 6] Social Security, 15 Defendant. 16

17 On October 10, 2019, the Court denied Plaintiff’s Motion for Leave to proceed in 18 forma pauperis (“IFP”) because his Complaint failed to state a claim and permitted leave 19 to amend. ECF Nos. 2, 4. Plaintiff filed an Amended Complaint and a renewed IFP Motion 20 on October 23, 2019. ECF Nos. 5, 6. 21 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 22 Court must determine whether the applicant has properly shown an inability to pay the 23 $400 filing fee under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 24 (9th Cir. 1999). To that end, each applicant seeking to proceed IFP must provide the Court 25 a signed affidavit including a statement of all the applicant’s assets. CivLR 3.2(a). Second, 26 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate whether the Complaint 27 sufficiently states a claim upon which relief may be granted before the Complaint is served. 28 1 See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but 2 requires a district court to dismiss an in forma pauperis complaint that fails to state a 3 claim.”). 4 Having reviewed Plaintiff’s Amended Complaint, the Court finds Plaintiff has 5 sufficiently stated a claim upon which relief may be granted. Specifically, Plaintiff appeals 6 the Commissioner’s denial of his benefits application pursuant to 42 U.S.C. 7 § 405(g) on the grounds that: (1) in determining Plaintiff’s residual functional capacity 8 (“RFC”) in light of his impairments, the Administrative Law Judge (“ALJ”) erroneously 9 discounted the weight of Plaintiff’s treating physicians’ opinions that Plaintiff is limited to 10 less than sedentary work, is unable to sustain attention and concentration, easily fatigues 11 mentally and physically, makes mistakes with poor focus, has muscle weakness, and cannot 12 sit for longer than 15 minutes, all of which render him unable to work; and (2) the ALJ 13 erroneously gave greater weight to the opinions of non-examining physicians and a 14 consultative examiner than to Plaintiff’s treating physicians. The Court finds these 15 allegations sufficiently specific to state a claim for reversal or remand of the 16 Commissioner’s decision. 17 Additionally, Plaintiff’s IFP Motion (ECF No. 6) contains the same sworn statement 18 of his assets provided in his previous IFP Motion. That affidavit shows that he receives 19 only $196 per month in general public assistance, owns no assets and receives no other 20 income. Id. Thus, the Court finds once more that Plaintiff has shown an inability to pay the 21 filing fee under § 1915(a). 22 Based on the foregoing considerations, the Court GRANTS the IFP Motion (ECF 23 No. 6). 24 In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court 25 DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States 26 Marshal Service (“USMS”) Form 285 along with certified copies of this Order and his 27 Amended Complaint (ECF No. 5). Once Plaintiff receives this “IFP Package,” the Court 28 ORDERS him to complete the Form 285 and forward all documents in the package to the 1 |} USMS. Upon receipt, the USMS will serve a copy of the Amended Complaint and 2 ||summons on Defendant as directed by Plaintiff on the USMS Form 285. The United States 3 || will advance all costs of service. 4 IT IS SO ORDERED. 5 || Dated: October 23, 2019 . Morn H. Honorable Allison H. Goddard 7 United States Magistrate Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28