1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARYANNE M., Case No.: 3:19-cv-02008-AHG 12 Plaintiff, ORDER:
13 v. (1) DENYING MOTION FOR LEAVE 14 ANDREW SAUL, Commissioner of TO PROCEED IN FORMA Social Security, PAUPERIS; and 15
Defendant. 16 (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND 17
18 [ECF No. 2]
19 Plaintiff Maryanne M. filed a brings this action against the Commissioner of Social 20 Security, Andrew Saul, seeking judicial review of the Commissioner’s final decision 21 denying her application for Social Security Disability Insurance and Supplemental 22 Security Income. ECF No. 1. Along with her Complaint, Plaintiff also filed a Motion for 23 Leave to Proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. For the 24 reasons set forth below, the Court (1) DENIES Plaintiff’s Motion to Proceed IFP WITH 25 PREJUDICE; and (2) DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE 26 and with leave to amend for failure to state a claim upon which relief may be granted. 27
28 1 I. LEGAL STANDARD 2 A motion to proceed IFP presents two issues for the Court’s consideration. First, 3 the Court must determine whether an applicant properly shows an inability to pay the 4 $400 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that 5 end, an applicant must also provide the Court with a signed affidavit “that includes a 6 statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 7 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s 8 complaint sufficiently states a claim upon which relief may be granted. See Lopez v. 9 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a 10 district court to dismiss an in forma pauperis complaint that fails to state a claim.”). 11 II. DISCUSSION 12 A. Motion to Proceed IFP 13 An applicant need not be completely destitute to proceed IFP, but she must 14 adequately prove her indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 15 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the 16 court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 17 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by 18 statute, regulation, or case law to determine when someone is poor enough to earn IFP 19 status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on 20 a case-by-case basis. See id. at 1235–36 (declining to implement a general benchmark of 21 “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 22 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based 23 upon available facts and by exercise of their “sound discretion”), rev'd on other grounds, 24 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). An 25 adequate affidavit should also state supporting facts “with some particularity, definiteness 26 and certainty,” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing 27 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)), so that the Court does not 28 grant IFP to an applicant who is “financially able, in whole or in material part, to pull his 1 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 2 Berryhill, No. 18-cv-2133 W (BGS), 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) 3 (noting that courts often reject IFP applications when applicants “can pay the filing fee 4 with acceptable sacrifice to other expenses”). 5 Here, Plaintiff’s affidavit states that Plaintiff receives $4,429 per month in 6 retirement and disability benefits, has $16,817 in cash savings, and owns a condominium 7 worth $340,000 and two motor vehicles. ECF No. 2 at 2–3. Importantly, Plaintiff’s 8 monthly income exceeds her reported expenses and the $400 filing fee accounts for 9 approximately two percent of Plaintiff’s current cash reserves.1 ECF No. 2 at 4–5. 10 Consequently, the Court finds that Plaintiff has not shown an inability to pay the filing 11 fee. 12 Further, unless Plaintiff’s affidavit is incorrect, no amendment to the IFP petition 13 would change the outcome. Accordingly, the Court DENIES Plaintiff’s motion to 14 proceed IFP WITH PREJUDICE. Plaintiff must pay the requisite court filing fee within 15 14 days. If Plaintiff fails to submit a timely payment, this action will be subject to sua 16 sponte dismissal pursuant to 28 U.S.C. § 1914(a). 17 B. Screening under 28 U.S.C. § 1915(e) 18 As discussed above, every complaint filed pursuant to the IFP provisions of 28 19 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 20 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 21 complaints that are frivolous or malicious, fail to state a claim on which relief may be 22 granted, or seek monetary relief from defendants who are immune from such relief. See 23 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 24 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 25
26 27 1 Although Plaintiff provided financial information for her spouse, consideration of that information is not required, nor would it change the Court’s conclusion. 28 1 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal 2 of right, such as an appeal of the Commissioner's denial of social security disability 3 benefits [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th 4 Cir. 2001) (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 5 prisoners”); Lopez, 203 F.3d at 1129. 6 Rule 8 sets forth the federal pleading standard used to determine whether a 7 complaint states a claim upon which relief may be granted. Fed. R. Civ. P. 8; see also 8 Ashcroft v. Iqbal, 556 U.S. 662
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARYANNE M., Case No.: 3:19-cv-02008-AHG 12 Plaintiff, ORDER:
13 v. (1) DENYING MOTION FOR LEAVE 14 ANDREW SAUL, Commissioner of TO PROCEED IN FORMA Social Security, PAUPERIS; and 15
Defendant. 16 (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND 17
18 [ECF No. 2]
19 Plaintiff Maryanne M. filed a brings this action against the Commissioner of Social 20 Security, Andrew Saul, seeking judicial review of the Commissioner’s final decision 21 denying her application for Social Security Disability Insurance and Supplemental 22 Security Income. ECF No. 1. Along with her Complaint, Plaintiff also filed a Motion for 23 Leave to Proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. For the 24 reasons set forth below, the Court (1) DENIES Plaintiff’s Motion to Proceed IFP WITH 25 PREJUDICE; and (2) DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE 26 and with leave to amend for failure to state a claim upon which relief may be granted. 27
28 1 I. LEGAL STANDARD 2 A motion to proceed IFP presents two issues for the Court’s consideration. First, 3 the Court must determine whether an applicant properly shows an inability to pay the 4 $400 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that 5 end, an applicant must also provide the Court with a signed affidavit “that includes a 6 statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 7 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s 8 complaint sufficiently states a claim upon which relief may be granted. See Lopez v. 9 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a 10 district court to dismiss an in forma pauperis complaint that fails to state a claim.”). 11 II. DISCUSSION 12 A. Motion to Proceed IFP 13 An applicant need not be completely destitute to proceed IFP, but she must 14 adequately prove her indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 15 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the 16 court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 17 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by 18 statute, regulation, or case law to determine when someone is poor enough to earn IFP 19 status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on 20 a case-by-case basis. See id. at 1235–36 (declining to implement a general benchmark of 21 “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 22 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based 23 upon available facts and by exercise of their “sound discretion”), rev'd on other grounds, 24 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). An 25 adequate affidavit should also state supporting facts “with some particularity, definiteness 26 and certainty,” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing 27 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)), so that the Court does not 28 grant IFP to an applicant who is “financially able, in whole or in material part, to pull his 1 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 2 Berryhill, No. 18-cv-2133 W (BGS), 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) 3 (noting that courts often reject IFP applications when applicants “can pay the filing fee 4 with acceptable sacrifice to other expenses”). 5 Here, Plaintiff’s affidavit states that Plaintiff receives $4,429 per month in 6 retirement and disability benefits, has $16,817 in cash savings, and owns a condominium 7 worth $340,000 and two motor vehicles. ECF No. 2 at 2–3. Importantly, Plaintiff’s 8 monthly income exceeds her reported expenses and the $400 filing fee accounts for 9 approximately two percent of Plaintiff’s current cash reserves.1 ECF No. 2 at 4–5. 10 Consequently, the Court finds that Plaintiff has not shown an inability to pay the filing 11 fee. 12 Further, unless Plaintiff’s affidavit is incorrect, no amendment to the IFP petition 13 would change the outcome. Accordingly, the Court DENIES Plaintiff’s motion to 14 proceed IFP WITH PREJUDICE. Plaintiff must pay the requisite court filing fee within 15 14 days. If Plaintiff fails to submit a timely payment, this action will be subject to sua 16 sponte dismissal pursuant to 28 U.S.C. § 1914(a). 17 B. Screening under 28 U.S.C. § 1915(e) 18 As discussed above, every complaint filed pursuant to the IFP provisions of 28 19 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 20 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 21 complaints that are frivolous or malicious, fail to state a claim on which relief may be 22 granted, or seek monetary relief from defendants who are immune from such relief. See 23 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 24 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 25
26 27 1 Although Plaintiff provided financial information for her spouse, consideration of that information is not required, nor would it change the Court’s conclusion. 28 1 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal 2 of right, such as an appeal of the Commissioner's denial of social security disability 3 benefits [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th 4 Cir. 2001) (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 5 prisoners”); Lopez, 203 F.3d at 1129. 6 Rule 8 sets forth the federal pleading standard used to determine whether a 7 complaint states a claim upon which relief may be granted. Fed. R. Civ. P. 8; see also 8 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short 9 and plain statement of the claim showing that the pleader is entitled to relief.”); Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual 11 allegations” are not required, but a plaintiff must provide “more than labels and 12 conclusions, and a formulaic recitation of the elements of a cause of action” to justify 13 relief). A proper pleading “does not require detailed factual allegations, but it demands 14 more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading 15 that offers labels and conclusions . . . will not do. Nor does a complaint suffice if it 16 tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 17 (internal citations and quotations omitted) (referring to Fed. R. Civ. P. 8). When a 18 plaintiff fails to provide “enough facts to state a claim to relief that is plausible on its 19 face,” the Court must either dismiss a portion, or the entirety of the complaint. Twombly, 20 550 U.S. at 547; Hoagland, 2012 WL 2521753, at *1. 21 Here, Plaintiff contends that a reversal or remand of Defendant’s decision is 22 warranted because “the denial of [Plaintiff’s] disability claim is not supported by 23 substantial evidence under the standards set forth by 42 U.S.C. § 405(g) and all other 24 applicable laws and regulations, including the weight of the evidence, Plaintiff’s 25 credibility, the medical opinions of his [sic] doctors, and any and all other applicable 26 evidentiary issues, both in law and in fact.” ECF No. 1 at 2–3. However, Plaintiff does 27 not explain which “evidentiary issues” are applicable or elaborate on the evidence that 28 supports her disability claim. These boilerplate allegations are precisely the type of 1 ||conclusory statements that fail to satisfy the federal pleading standard. 2 Because Plaintiffs Complaint fails to state a claim, the Court must DISMISS 3 || Plaintiffs Complaint pursuant to § 1915(e)(2)(B)(ii). However, Plaintiff shall have 28 4 || days to file an amended complaint that cures the deficiencies discussed herein. 5 Il. CONCLUSION 6 For the reasons stated above, the Court DENIES Plaintiff’s Motion for Leave to 7 || Proceed IFP (ECF No. 2) WITH PREJUDICE. To proceed with this lawsuit, Plaintiff 8 || must pay the $400 filing fee by November 26, 2019. If Plaintiff fails to submit a timely 9 || payment, this action will be subject to sua sponte dismissal under 28 U.S.C. § 1914(a). 10 Further, the Court DISMISSES Plaintiff's complaint WITHOUT PREJUDICE 11 failure to state a claim upon which relief may be granted. Plaintiff is GRANTED 12 || leave to amend by December 10, 2019. 13 IT IS SO ORDERED. 14 Dated: November 12, 2019 5 _Abiomt. Xl Honorable Allison H. Goddard 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28