Lenore Skinner v. Kijakazi

Opinion

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10 . . 11 || STEFANIE S., | Case No.: 20-ev-1134-RBM 12 Plaintity, | ORDER GRANTING PLAINTIFF'S □ 13 |) APPLICATION TO PROCEED IN || ANDREW SAUL, COMMISSIONER OF | PerpavINc OR COSTS 6 Defendant. |

17 _ (Doc. 3] | 18 □ 20 On June 23, 2020, Plaintiff Stefanie S. (‘Plaintiff’) filed a complaint under 42 21 |1U.S.C. §§ 405(g) and 1383(c) seeking judicial review of the Commissioner of Social 22 ||Security’s (“Defendant” or “Commissioner”) denial of disability insurance benefits and 23 supplemental security income under Titles II and XVI of the Social Security Act (“the 24 |! Act”). (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a motion to 25 || proceed in forma pauperis (“IFP Motion”). (Doc. 3.) 26 On April 8, 2020, Chief Judge Larry Alan Burns issued an order staying civil cases 27 |\arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the 28 || ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating

1 part “all civil cases filed on or after March 1, 2020 brought against the Commissioner . 2 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). Initially, the Court held 3 ruling on the IFP Motion in abeyance pursuant. to the Chief Judge Order. But, the 4 || COVID-19 pandemic has been ongoing for months and will continue for the foreseeable 5 || future. At this time, the Court lifts the stay of this case for the limited of purpose of ruling 6 |/on the IFP Motion which will allow Plaintiff to proceed with effectuating service of the 7 ||summons and complaint to Defendant. Once service is complete, the Court will stay the 8 ||case again until such time as the Commissioner begins normal operations at the Office of 9 || Appellate Hearings Operations and resumes preparation of Certified Administrative 10 |/Records. See Or. of Chief Judge No. 21 at sec. 6. 11 Having reviewed the complaint and IFP Motion, the Court GRANTS Plaintiffs 12 |}motion and further finds that Plaintiffs complaint sufficiently survives a sua sponte 13 || screening. 14 . II. DISCUSSION 15 A. Application to Proceed IFP □ 16 All parties instituting a civil action in a district court of the United States, except an _17 application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). Buta 18 || litigant who, because of indigency, is unable to pay the required fees or security may 19 || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 20 || facts of an affidavit of poverty must be stated with some particularity, definiteness, and 21 || certainty. “Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing United 22 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). □ 23 || The determination of indigency falls within the district court’s discretion. Rowland 24 Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 US. 25 || 194 (1993). It is well-settled that a party need not be completely destitute to proceed in 26 forma pauperis. Adkins v. EI. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 (1948); 27 \|see also Escobedo, 787 F.3d at 1235. To satisfy the requirements of 28 U.S.C. § 28 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of

1 ||his poverty pay or give security for costs . . . and still be able to provide[ ] himself and 2 dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 3 || omitted). Nevertheless, “the same even-handed care must be employed to assure that 4 || federal funds are not squandered to underwrite, at public expense, . ... the remonstrances 5 || ofa suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 6 ||v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). Courts 7 to reject IFP motions where the applicant can pay the filing fee with acceptable 8 ||sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 9 **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IEP, but later 10 required to pay $120 filing fee out of $900 settlement proceeds). 1] Here, Plaintiff has sufficiently demonstrated entitlement to IFP status. Plaintiff has 12 ||no employment history for the past two years. (Doc. 3 at 2.) Plaintiffis currently homeless 13 and she reports no ownership of assets. (Ud. at 3,5.) Her monthly income comprises of 14 $449 in public assistance and she has no cash or personal savings. (/d. at 1-2.) □□□□□□□□□□□ 15 $390 in monthly expenses comprises of $150 in food, $40 in laundry and dry-cleaning, and 16 ||$200 in transportation. (Id. at 4-5.) 17 Plaintiff's affidavit sufficiently demonstrated that she is unable to pay the required 18 || $400 filing fee without sacrificing the necessities of life. See Adkins, 335 U.S. at 339-340. 19 |} The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 20 || Accordingly, Plaintiff's IFP Motion is GRAN TED. 21 B. Sua Sponte Screening — 22 Pursuant to 28 U.S.C..§ 1915(a), a complaint filed by any person proceeding IFP is 23 ||also subject to a mandatory sua sponte screening. The Court must review and dismiss any 24 ||complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 25 ||from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 26 F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 27 || WL1258846, at *3 (S.D. Cal. Mar. 19, 2019).

1 To survive, complaints must contain “a short and plain statement of the claim 2 ||showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “[T]he pleading 3 || standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 4 ||more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. 5 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 ||(2007)). And “[t]hreadbare recitals of elements of a cause of action, supported by mere 7 ||conclusory statements do not suffice.” Jd. Instead, plaintiff must state a claim plausible |lon its face, meaning “plaintiff pleads factual content that allows the court to draw the 9 ||reasonable inference that the defendant is liable for the misconduct alleged.” Jd. at 678 10 (quoting Twombly, 550 U.S. at 556). “When there are well-pleaded factual allegations, a 11 ||court should assume their veracity, and then determine whether they plausibly give rise to 12 entitlement to relief.” Id. at 679. 13 Social security appeals are not exempt from the general screening requirements for 14 cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. 15 ||Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *1 16 ||(E.D. Cal. June 28, 2012)). 17 In social security appeals, courts within the Ninth Circuit have established four 18 ||requirements necessary for a complaint to survive a sua sponte screening: 19 First, the plaintiff must establish that she had exhausted her administrative remedies _ pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty 20 P days after notice of a final decision. Second, the complaint must indicate the judicial 21 district in which the plaintiff resides. Third, the complaint must state the nature of 79 the plaintiffs disability and when the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement identifying the 23 nature of the plaintiff's disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 25 || Skylar v. Saul, 19-cv-1581-NLS, 2019 WL 4039650, at *1 (S.D. Cal. Aug. 27, 2019) 26 ||(quoting Montoya, 2016 WL 890922 at *2). As to the fourth requirement, a complaint is 27 || insufficient if it merely alleges the Commissioner was wrong in denying plaintiff benefits. 28 || See Skylar, 2019 WL 4039650 at *1; see also Hoagland, 2012 WL 2521753 at *3. Instead,

1 complaint “must set forth a brief statement of facts setting forth the reasons why the 2 ||Commissioner’s decision was wrong.” Skylar, 2019 WL 4039650 at *2. 3 As to the first requirement, the complaint contains sufficient allegations that Plaintiff 4 ||exhausted her administrative remedies. Plaintiff concurrently filed an application for 5 || disability insurance benefits and supplemental security income, which was denied initially 6 upon reconsideration by the Commissioner. (Doc. | at 2, ] 6.) An administrative law 7 || judge (‘ALJ’) held a hearing and issued a decision denying Plaintiff's claim for benefits. 8 || Ud. at 9]7.) Plaintiff filed a request for review of the ALJ’s decision and the appeals council 9 ||denied it. Ud. at 7 8.) Plaintiff timely filed the complaint within sixty days of the 10 ||Commissioner’s final decision. (/d.) As to the second requirement, the complaint states 11 || Plaintiff resides “within the jurisdictional boundaries” of this Court. (Ud. at 1.) As to the 12 |/third requirement, Plaintiff alleges that she is, and at all times relevant to this action was, 13 || disabled as defined in the Act. Ud. at 95.) As to the fourth requirement, the complaint 14 || cites several grounds for reversing or remanding the ALJ’s decision, including: the ALJ’s 15 ||mental residual functional capacity assessment is inconsistent with the record as.a whole; 16 || the ALJ failed to articulate clear and convincing reasons for rejecting Plaintiff 5 testimony; 17 || the ALJ failed to properly evaluate the opinions of the examining sources and state agency 18 medical consultants; and the ALJ’s finding that Plaintiff has residual capacity for work 19 || activities lacks the support of substantial evidence. (/d. at { 9.) Based upon the foregoing, 20 Court finds the complaint establishes the four requirements necessary to survive sua 21 || sponte screening. . 22 Ill. CONCLUSION 23 Accordingly, IT IS HEREBY ORDERED: 24 1. Plaintiff's IFP Motion is GRANTED. 25 2. The Clerk of Court is DIRECTED to issue a summons as to Plaintiff's 26 ||complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the 27 ||named Defendant. In addition, the Clerk of Court is DIRECTED to provide Plaintiff with 28 || certified copies of this Order and the complaint.

1 3. Upon receipt of these materials, Plaintiff is DIRECTED to complete Form 2 ||285 and forward the materials to the United States Marshals Service. 3 4. Upon receipt, the United States Marshals Service is ORDERED to serve a 4 || copy of the Complaint and summons upon Defendant as directed by Plaintiff on Form 285. 5 || The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIv. ||P. 4(c)). 7 5. After service is complete, the Court will stay the case again and the stay will 8 || automatically lift after Defendant files the Certified Administrative Record. 10 Dated: September 16, 2020 Fiibimades ety» _ 12 IN. RUTH BE UDEZ MONTENEGRO 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 □□

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