1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 20cv669-BLM 11 CHAD GORDON JANKO,
12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN 13 v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS AND 14 ANDREW SAUL, COMMISSIONER OF SOCIAL DISMISSING COMPLAINT WITH LEAVE SECURITY, 15 TO AMEND Defendant. 16 [ECF NO. 2] 17 18 The instant matter was initiated on April 7, 2020 when Plaintiff filed a complaint “to seek 19 judicial review of the Commissioner’s decision and [to] request[] that this court reverse that 20 decision, or in the alternative, to remand this matter for a new hearing on the following grounds.” 21 ECF No. 1 at 2. That same day, Plaintiff filed an Application to Proceed in District Court without 22 Prepaying Fees or Costs. ECF No. 2. Having reviewed the complaint and motion, the Court 23 finds that Plaintiff’s complaint does not sufficiently state a claim for relief. Accordingly, Plaintiff’s 24 Application to Proceed in District Court without Prepaying Fees or Costs is GRANTED, and the 25 complaint is DISMISSED WITH LEAVE TO AMEND. 26 Application to Proceed in District Court without Prepaying Fees or Costs 27 All parties instituting any civil action, suit, or proceeding in a district court of the United 1 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if 2 she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 3 [A]ny court of the United States may authorize the commencement, prosecution 4 or defense of any suit, action or proceeding ... without prepayment of fees or 5 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 6 give security therefor. 7 8 The determination of indigency falls within the district court's discretion. California Men's 9 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 10 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 11 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 12 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 13 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. 14 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 15 poverty pay or give security for costs ... and still be able to provide for himself and dependents 16 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 17 be employed to assure that federal funds are not squandered to underwrite, at public expense, 18 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 19 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 20 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 21 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 22 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 23 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 24 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee). 25 Moreover, the facts as to the affiant's poverty must be stated “with some particularity, 26 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 27 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status. 1 years. ECF No. 2 at 1-2. Additionally, Plaintiff does not receive unemployment payments, 2 disability, or any other type of public assistance such as welfare. Id. at 2. In support of his 3 application, Plaintiff states that he is forty-two years old, has no income, and lives with his 4 parents who support him completely. Id. at 5. Based on the information provided, the Court 5 finds that Plaintiff is unable to pay the required filing fee. Accordingly, Plaintiff’s motion to 6 proceed in forma pauperis is GRANTED. 7 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 8 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 9 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 10 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 11 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 12 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 13 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 14 1126–27. 15 To survive, all complaints must contain “a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 17 announces does not require ‘detailed factual allegations,’ but it demands more than an 18 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 19 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 20 “recitals of elements of a cause of action, supported by mere conclusory statements do not 21 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the 22 pleaded factual content allows the court to draw the reasonable inference that the defendant is 23 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. 24 at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their 25 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 26 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements 27 for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 1 In the context of a social security appeal, courts within the Ninth District have established 2 four elements necessary for a complaint to survive a screening: 3 First, the plaintiff must establish that she has exhausted her administrative 4 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 5 within sixty days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 20cv669-BLM 11 CHAD GORDON JANKO,
12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN 13 v. DISTRICT COURT WITHOUT PREPAYING OF FEES OR COSTS AND 14 ANDREW SAUL, COMMISSIONER OF SOCIAL DISMISSING COMPLAINT WITH LEAVE SECURITY, 15 TO AMEND Defendant. 16 [ECF NO. 2] 17 18 The instant matter was initiated on April 7, 2020 when Plaintiff filed a complaint “to seek 19 judicial review of the Commissioner’s decision and [to] request[] that this court reverse that 20 decision, or in the alternative, to remand this matter for a new hearing on the following grounds.” 21 ECF No. 1 at 2. That same day, Plaintiff filed an Application to Proceed in District Court without 22 Prepaying Fees or Costs. ECF No. 2. Having reviewed the complaint and motion, the Court 23 finds that Plaintiff’s complaint does not sufficiently state a claim for relief. Accordingly, Plaintiff’s 24 Application to Proceed in District Court without Prepaying Fees or Costs is GRANTED, and the 25 complaint is DISMISSED WITH LEAVE TO AMEND. 26 Application to Proceed in District Court without Prepaying Fees or Costs 27 All parties instituting any civil action, suit, or proceeding in a district court of the United 1 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if 2 she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 3 [A]ny court of the United States may authorize the commencement, prosecution 4 or defense of any suit, action or proceeding ... without prepayment of fees or 5 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 6 give security therefor. 7 8 The determination of indigency falls within the district court's discretion. California Men's 9 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 10 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 11 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 12 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 13 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. 14 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 15 poverty pay or give security for costs ... and still be able to provide for himself and dependents 16 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 17 be employed to assure that federal funds are not squandered to underwrite, at public expense, 18 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 19 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 20 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 21 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 22 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 23 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 24 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee). 25 Moreover, the facts as to the affiant's poverty must be stated “with some particularity, 26 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 27 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status. 1 years. ECF No. 2 at 1-2. Additionally, Plaintiff does not receive unemployment payments, 2 disability, or any other type of public assistance such as welfare. Id. at 2. In support of his 3 application, Plaintiff states that he is forty-two years old, has no income, and lives with his 4 parents who support him completely. Id. at 5. Based on the information provided, the Court 5 finds that Plaintiff is unable to pay the required filing fee. Accordingly, Plaintiff’s motion to 6 proceed in forma pauperis is GRANTED. 7 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 8 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 9 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 10 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 11 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 12 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 13 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 14 1126–27. 15 To survive, all complaints must contain “a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 17 announces does not require ‘detailed factual allegations,’ but it demands more than an 18 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 19 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 20 “recitals of elements of a cause of action, supported by mere conclusory statements do not 21 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the 22 pleaded factual content allows the court to draw the reasonable inference that the defendant is 23 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. 24 at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their 25 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 26 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements 27 for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 1 In the context of a social security appeal, courts within the Ninth District have established 2 four elements necessary for a complaint to survive a screening: 3 First, the plaintiff must establish that she has exhausted her administrative 4 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 5 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 6 state the nature of the plaintiff's disability and when the plaintiff claims she became 7 disabled. Fourth, the complaint must contain a plain, short, and concise statement 8 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. 9 10 Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL 11 890922 at *2). With regard to element four, a complaint is insufficient if it merely states that 12 the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012 13 WL 2521753 at *3 (“Every plaintiff appealing an adverse decision of the Commissioner believes 14 that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege 15 facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead, 16 the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the 17 Commissioner’s decision was wrong.” Id. at *2. 18 After reviewing the complaint, the Court finds that Plaintiff failed to state facts sufficient 19 to state a claim for relief. Plaintiff alleges “[t]here is no substantial medical or vocational 20 evidence” to support the ALJ’s conclusions; “[t]here is no substantial evidence . . . to support 21 the Commissioner’s finding that plaintiff could perform any substantial gainful activity;” the 22 evidence can only support a finding of disability; and that “[n]ew and material evidence for 23 which good cause exists for failure to submit earlier exists and warrants a remand.” ECF No. 1 24 at 2-3. The complaint does not “state the nature of the plaintiff's disability and when the plaintiff 25 claims he became disabled.” Skylar v. Saul, 2019 WL 4039650. The complaint also lacks “a 26 plain, short, and concise statement identifying the nature of the plaintiff's disagreement with 27 the determination made by the Social Security Administration.” Id. Plaintiff states that the ALJ’s 1 |}evidence that warrants remand of this matter, but no specific facts. ECF No. 1 at 2-3. 2 || Accordingly, Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND. ' 3 IT IS SO ORDERED. 4 ||Dated: 4/9/2020 Lyrbe He ore 5 Hon. Barbara L. Major United States Maaistrate Judae 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ||' The Court notes that Plaintiff's counsel’s firm has received several dismissals in other cases for the same issue and has been “strongly urged” numerous times “to reconsider using form 25 complaints, which fail to comply with Rule 8 and the IFP statute and waste the Court's 26 resources.” Castro v. Saul, S.D. Ca. No. 20cv54-BEN(BLM); Irizarry v. Berryhill, S.D. Cal. No. 19cv476-AJB(NLS); see also Williams v. Berryhill, S.D. Cal. No. 18cv2678-AJB(BLM); Maye v. 27 || Berryhill, S.D. Cal. No. 19cv110-AJB(WVG); and Copenhaver v. Berryhill, S.D. Cal. No. 18cv790- AJB(MDD). 28