JALAL H., Case No.: 3:22-cv-02043-AHG Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA v. PAUPERIS SECURITY, [ECF No. 2] Defendant. On December 23, 2022, Plaintiff Jalal H. (“Plaintiff”) brought this action against the Commissioner of Social Security, seeking judicial review of the Commissioner’s final administrative decision denying his application for Social Security Supplemental Security Income Disability Benefits for lack of disability. ECF No. 1. Along with his Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. A motion to proceed IFP presents two issues for the Court’s consideration. First, the Court must determine whether an applicant properly shows an inability to pay the $402 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an applicant must also provide the Court with a signed affidavit “that includes a statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”). A. Motion to Proceed IFP An applicant need not be completely destitute to proceed IFP, but he must adequately prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). An adequate affidavit should also state supporting facts “with some particularity,
1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a); UNITED STATES COURTS, DISTRICT COURT MISCELLANEOUS FEE SCHEDULE § 14 (effective Dec. 1, 2020), https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. The additional $52 administrative fee does not apply to persons granted leave to proceed definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not grant IFP status to an applicant who is “financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting that courts often reject IFP applications when applicants “can pay the filing fee with acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. Here, Plaintiff states in his affidavit that he receives $2,000.00 per month in public assistance, has $180.00 in his checking account, has no valuable assets other than his 2001 Chevrolet Silverado, and he and his spouse2 have no other source of income. ECF No. 2 at 1–3. Plaintiff’s affidavit illustrates that his monthly income barely exceeds his monthly expenses of $1,924.00 for rent, utilities, groceries, clothing, gas, car insurance, and household goods. Id. at 2–5. Plaintiff explains that he lived with his wife and two children in his car; they now live in a trailer but are still struggling to subsist on food stamps. Id. at 5. Considering the information in the affidavit,3 the Court finds that Plaintiff has sufficiently shown an inability to pay the $402 filing fee under § 1915(a). 2 Compare Vimegnon v. Or. Health & Sci. Univ., No. 3:16-cv-2304-HZ, 2017 WL 111309, at *2 (D. Or. Jan. 9, 2017) (collecting cases that find spouses’ income to be particularly relevant in IFP applications) with ECF No. 2 at 2 (representing that Plaintiff’s spouse has not been employed for the last two years and does not have any other sources of income). 3 The Court also notes that the 2022 federal poverty guideline for a family of four is $27,750, which is more than the $24,000 in annual welfare benefits Plaintiff receives. See U.S. DEPT. OF HEALTH & HUMAN SERV., U.S. FEDERAL POVERTY GUIDELINES, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines; see also Burk v. Comm’r of Soc. Sec. Admin., No. CV-22-1626-PHX-DGC, 2022 U.S. Dist. LEXIS 189208, at *2–3 (D. Ariz. Oct. 17, 2022) (collecting cases where courts considered federal B. Screening under 28 U.S.C. 1915(e) As discussed above, every complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss complaints that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of right, such as an appeal of the Commissioner’s denial of social security disability benefits [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez, 203 F.3d at 1129. Rule 2 of the
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JALAL H., Case No.: 3:22-cv-02043-AHG Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA v. PAUPERIS SECURITY, [ECF No. 2] Defendant. On December 23, 2022, Plaintiff Jalal H. (“Plaintiff”) brought this action against the Commissioner of Social Security, seeking judicial review of the Commissioner’s final administrative decision denying his application for Social Security Supplemental Security Income Disability Benefits for lack of disability. ECF No. 1. Along with his Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. A motion to proceed IFP presents two issues for the Court’s consideration. First, the Court must determine whether an applicant properly shows an inability to pay the $402 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an applicant must also provide the Court with a signed affidavit “that includes a statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”). A. Motion to Proceed IFP An applicant need not be completely destitute to proceed IFP, but he must adequately prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). An adequate affidavit should also state supporting facts “with some particularity,
1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a); UNITED STATES COURTS, DISTRICT COURT MISCELLANEOUS FEE SCHEDULE § 14 (effective Dec. 1, 2020), https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. The additional $52 administrative fee does not apply to persons granted leave to proceed definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not grant IFP status to an applicant who is “financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting that courts often reject IFP applications when applicants “can pay the filing fee with acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. Here, Plaintiff states in his affidavit that he receives $2,000.00 per month in public assistance, has $180.00 in his checking account, has no valuable assets other than his 2001 Chevrolet Silverado, and he and his spouse2 have no other source of income. ECF No. 2 at 1–3. Plaintiff’s affidavit illustrates that his monthly income barely exceeds his monthly expenses of $1,924.00 for rent, utilities, groceries, clothing, gas, car insurance, and household goods. Id. at 2–5. Plaintiff explains that he lived with his wife and two children in his car; they now live in a trailer but are still struggling to subsist on food stamps. Id. at 5. Considering the information in the affidavit,3 the Court finds that Plaintiff has sufficiently shown an inability to pay the $402 filing fee under § 1915(a). 2 Compare Vimegnon v. Or. Health & Sci. Univ., No. 3:16-cv-2304-HZ, 2017 WL 111309, at *2 (D. Or. Jan. 9, 2017) (collecting cases that find spouses’ income to be particularly relevant in IFP applications) with ECF No. 2 at 2 (representing that Plaintiff’s spouse has not been employed for the last two years and does not have any other sources of income). 3 The Court also notes that the 2022 federal poverty guideline for a family of four is $27,750, which is more than the $24,000 in annual welfare benefits Plaintiff receives. See U.S. DEPT. OF HEALTH & HUMAN SERV., U.S. FEDERAL POVERTY GUIDELINES, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines; see also Burk v. Comm’r of Soc. Sec. Admin., No. CV-22-1626-PHX-DGC, 2022 U.S. Dist. LEXIS 189208, at *2–3 (D. Ariz. Oct. 17, 2022) (collecting cases where courts considered federal B. Screening under 28 U.S.C. 1915(e) As discussed above, every complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss complaints that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of right, such as an appeal of the Commissioner’s denial of social security disability benefits [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez, 203 F.3d at 1129. Rule 2 of the Federal Rules of Civil Procedure’s Supplemental Rules of Social Security Actions sets forth the requirements for a complaint in an action appealing the decision of the Commissioner. FED. R. CIV. P., SUPPLEMENTAL R. 2 OF SOC. SEC. ACTIONS UNDER 42 U.S.C. § 405(G) (effective Dec. 1, 2022) (The complaint must “(A) state that the action is brought under § 405(g); (B) identify the final decision to be reviewed, including any identifying designation provided by the Commissioner with the final decision; (C) state the name and the county of residence of the person for whom benefits are claimed; (D) name the person on whose wage record benefits are claimed; and (E) state the type of benefits claimed.” The complaint may “include a short and plain statement of the grounds for relief.”). In the IFP screening context, however, “[t]he plaintiff must provide a statement identifying the basis of the plaintiff’s disagreement with the ALJ’s determination and must make a showing that he is entitled to relief, ‘in sufficient detail such that the Court can understand the legal and/or factual issues in dispute so that it can meaningfully screen the complaint pursuant to § 1915(e).’” Jaime B. v. Saul, No. 19cv2431-JLB, 2020 WL 1169671, at *2 (S.D. Cal. Mar. 10, 2020) (quoting Graves v. Colvin, No. 15cv106-RFB- NJK, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015)). “Every plaintiff appealing an adverse decision of the Commissioner believes that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege facts supporting the legal conclusion that the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, at *2. Having reviewed Plaintiff’s Complaint, the Court finds Plaintiff has sufficiently stated a claim upon which relief may be granted. Specifically, Plaintiff appeals the Commissioner’s denial of his benefits application on the grounds that: (1) “There is new and material evidence that relates to the period of disability”; (2) “The Appeals Council wrongfully rejected this evidence contrary to Brewes v. SSA, 682 F.3d 1157 (9th Cir. 2012)”; (3) “The conclusions and findings of fact of the defendant are not supported by substantial evidence and are contrary to law and regulation”; and (4) “The Medical- Vocational Guidelines dictate an award of benefits.” ECF No. 1 at 1–2. The Court finds these allegations sufficiently specific to state a claim for reversal or remand of the Commissioner’s decision. Based on the foregoing considerations, the Court GRANTS the Plaintiff’s Motion to Proceed In Forma Pauperis, without prepayment of fees or costs. ECF No. 2. Typically, after granting IFP status, the Court would direct the Clerk’s Office to prepare and issue summons for the named Defendant, and direct the Plaintiff to complete Form 285. Then, the United States Marshal Service would serve a copy of the complaint and summons on Defendant. However, in accordance with Rule 3 of the Federal Rules of Civil Procedure’s Supplemental Rules of Social Security Actions, and this district’s General Order 747, a notice of electronic filing shall be transmitted to the Social Security Administration’s Office of General Counsel and to the United States Attorney’s Southern District of California office in lieu of service of a summons. See FED. R. CIV. P., SUPPLEMENTAL R. 3 OF SOC. SEC. ACTIONS UNDER 42 U.S.C. § 405(G) (effective Dec. 1, 2022) (“The court must notify the Commissioner of the commencement of the action by transmitting a Notice of Electronic Filing to the appropriate office within the Social Security Administration’s Office of General Counsel and to the United States Attorney for the district where the action is filed. ... The plaintiff need not serve a summons and complaint under Civil Rule 4.”); General Order No. 747 (S.D. Cal. Dec. 15, 2022) (explaining that, in social security cases, the administrative record is due in lieu of an answer “60[] days after service of the Notice of Electronic Filing of the complaint,” emphasizing that the service of summons is no longer a requirement). Here, no further action is needed, as the Clerk’s Office already transmitted the notice of electronic filing to Defendant in the instant case. See ECF No. 3, NEF (“The Notice of Electronic Filing of complaint sent by the court to the Commissioner suffices for service of the complaint. The Plaintiff need not serve a summons and complaint under Civil Rule 4.”). Dated: January 4, 2023 Hitaorable eH H. Goddard United States Magistrate Judge