1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL EDWARD M., Case No.: 3:23-cv-01138-RBM-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO 13 v. PROCEED IN FORMA PAUPERIS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15
Defendant. 16
18 [Doc. 2] 19 20 On June 20, 2023, Plaintiff Michael Edward M. (“Plaintiff”) brought this action 21 against the Commissioner of Social Security (“Commissioner”), seeking judicial review of 22 the Commissioner’s final administrative decision denying his applications for Social 23 Security Disability Insurance Benefits and Supplemental Security Income for lack of 24 disability. (Doc. 1.) Along with his Complaint, Plaintiff filed a Motion for Leave to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (Doc. 2.) 26 I. LEGAL STANDARD 27 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 28 Court must determine whether an applicant properly shows an inability to pay the 1 $402 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that 2 end, an applicant must also provide the Court with a signed affidavit “that includes a 3 statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 4 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s 5 complaint sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 6 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court 7 to dismiss an in forma pauperis complaint that fails to state a claim.”). 8 II. DISCUSSION 9 A. Motion to Proceed IFP 10 An applicant need not be completely destitute to proceed IFP, but he must adequately 11 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 12 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs 13 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 14 Cir. 2015) (citing Adkins, 335 U.S. at 339); see also United States v. McQuade, 647 F.2d 15 938, 940 (9th Cir. 1981) (an adequate affidavit should state supporting facts “with some 16 particularity, definiteness and certainty”). No exact formula is “set forth by statute, 17 regulation, or case law to determine when someone is poor enough to earn IFP status.” 18 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 19 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 20 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 21 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 22 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 23
24 25 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 26 MISCELLANEOUS FEE SCHEDULE § 14 (effective Dec. 1, 2020), 27 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 28 1 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 2 Here, in support of his IFP application, Plaintiff states in his affidavit that he receives 3 $250.00 in public assistance through CalFresh and $100.00 in gifts every month, but 4 otherwise has no income. (Doc. 2 at 1–2.) He reports no assets, no employment, no bank 5 accounts in any financial institution, and he explains that he is homeless with no income. 6 (Id. at 2–5.) Considering the information in the affidavit, the Court finds that Plaintiff has 7 sufficiently shown an inability to pay the $402 filing fee pursuant to § 1915(a). 8 B. Screening under 28 U.S.C. 1915(e) 9 As discussed above, every complaint filed pursuant to the IFP provisions of 28 10 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 11 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 12 complaints that are frivolous or malicious, fail to state a claim on which relief may be 13 granted, or seek monetary relief from defendants who are immune from such relief. See 14 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 15 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 16 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 17 right, such as an appeal of the Commissioner’s denial of social security disability benefits 18 [under 42 U.S.C. § 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 19 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 20 Lopez, 203 F.3d at 1129. 21 In the past, this Court and others have applied the familiar Rule 8 pleading standard 22 to conduct the mandatory screening of complaints under the IFP statute in Social Security 23 appeals brought pursuant to 42 U.S.C. § 405(g). See, e.g., Hoagland, 2012 WL 2521753, 24 at *2–3; (applying Federal Rule of Civil Procedure 8(a) to determine the sufficiency of a 25 complaint in a Social Security appeal); Jaime B. v. Saul, No. 3:19-CV-02431-JLB, 2020 26 WL 1169671, at *3 (S.D. Cal. Mar. 10, 2020); Detra H. v. Kijakazi, No. 3:22-CV-01162- 27 AHG, 2022 WL 4230547, at *2 (S.D. Cal. Aug. 10, 2022). However, since the Federal 28 Rules of Civil Procedure’s Supplemental Rules for Social Security Actions Under 42 1 U.S.C. § 405(g) (“Supplemental Rules”) became effective on December 1, 2022, the 2 standard for screening complaints in the Social Security appeals context has changed. 3 Now, to the extent the Federal Rules of Civil Procedure are inconsistent with the 4 Supplemental Rules, the Court must apply the Supplemental Rules rather than the Civil 5 Rules. See Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL EDWARD M., Case No.: 3:23-cv-01138-RBM-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO 13 v. PROCEED IN FORMA PAUPERIS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15
Defendant. 16
18 [Doc. 2] 19 20 On June 20, 2023, Plaintiff Michael Edward M. (“Plaintiff”) brought this action 21 against the Commissioner of Social Security (“Commissioner”), seeking judicial review of 22 the Commissioner’s final administrative decision denying his applications for Social 23 Security Disability Insurance Benefits and Supplemental Security Income for lack of 24 disability. (Doc. 1.) Along with his Complaint, Plaintiff filed a Motion for Leave to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (Doc. 2.) 26 I. LEGAL STANDARD 27 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 28 Court must determine whether an applicant properly shows an inability to pay the 1 $402 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that 2 end, an applicant must also provide the Court with a signed affidavit “that includes a 3 statement of all assets[,] which shows inability to pay initial fees or give security.” CivLR 4 3.2(a). Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s 5 complaint sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 6 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court 7 to dismiss an in forma pauperis complaint that fails to state a claim.”). 8 II. DISCUSSION 9 A. Motion to Proceed IFP 10 An applicant need not be completely destitute to proceed IFP, but he must adequately 11 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 12 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs 13 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 14 Cir. 2015) (citing Adkins, 335 U.S. at 339); see also United States v. McQuade, 647 F.2d 15 938, 940 (9th Cir. 1981) (an adequate affidavit should state supporting facts “with some 16 particularity, definiteness and certainty”). No exact formula is “set forth by statute, 17 regulation, or case law to determine when someone is poor enough to earn IFP status.” 18 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 19 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 20 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 21 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 22 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 23
24 25 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 26 MISCELLANEOUS FEE SCHEDULE § 14 (effective Dec. 1, 2020), 27 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 28 1 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 2 Here, in support of his IFP application, Plaintiff states in his affidavit that he receives 3 $250.00 in public assistance through CalFresh and $100.00 in gifts every month, but 4 otherwise has no income. (Doc. 2 at 1–2.) He reports no assets, no employment, no bank 5 accounts in any financial institution, and he explains that he is homeless with no income. 6 (Id. at 2–5.) Considering the information in the affidavit, the Court finds that Plaintiff has 7 sufficiently shown an inability to pay the $402 filing fee pursuant to § 1915(a). 8 B. Screening under 28 U.S.C. 1915(e) 9 As discussed above, every complaint filed pursuant to the IFP provisions of 28 10 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 11 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 12 complaints that are frivolous or malicious, fail to state a claim on which relief may be 13 granted, or seek monetary relief from defendants who are immune from such relief. See 14 28 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 15 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 16 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 17 right, such as an appeal of the Commissioner’s denial of social security disability benefits 18 [under 42 U.S.C. § 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 19 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 20 Lopez, 203 F.3d at 1129. 21 In the past, this Court and others have applied the familiar Rule 8 pleading standard 22 to conduct the mandatory screening of complaints under the IFP statute in Social Security 23 appeals brought pursuant to 42 U.S.C. § 405(g). See, e.g., Hoagland, 2012 WL 2521753, 24 at *2–3; (applying Federal Rule of Civil Procedure 8(a) to determine the sufficiency of a 25 complaint in a Social Security appeal); Jaime B. v. Saul, No. 3:19-CV-02431-JLB, 2020 26 WL 1169671, at *3 (S.D. Cal. Mar. 10, 2020); Detra H. v. Kijakazi, No. 3:22-CV-01162- 27 AHG, 2022 WL 4230547, at *2 (S.D. Cal. Aug. 10, 2022). However, since the Federal 28 Rules of Civil Procedure’s Supplemental Rules for Social Security Actions Under 42 1 U.S.C. § 405(g) (“Supplemental Rules”) became effective on December 1, 2022, the 2 standard for screening complaints in the Social Security appeals context has changed. 3 Now, to the extent the Federal Rules of Civil Procedure are inconsistent with the 4 Supplemental Rules, the Court must apply the Supplemental Rules rather than the Civil 5 Rules. See Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405(g), 6 2022 Advisory Committee Note at https://www.law.cornell.edu/rules/frcp/supplemental- 7 rules-for-social-security-actions-under-42-U.S.C.-405-g. “Supplemental Rules 2, 3, 4, and 8 5 are the core of the provisions that are inconsistent with, and supersede, the corresponding 9 rules on pleading, service, and presenting the action for decision.” Id. 10 Rule 2 of the Supplemental Rules sets forth the requirements for a complaint in an 11 action appealing the decision of the Commissioner. Accordingly, the Court must apply 12 Rule 2 to determine whether Plaintiff’s Complaint sufficiently states a claim for relief. 13 Under Rule 2, the complaint must: 14 (A) state that the action is brought under § 405(g); (B) identify the final decision to be reviewed, including any identifying 15 designation provided by the Commissioner with the final decision; 16 (C) state the name and the county of residence of the person for whom benefits are claimed; 17 (D) name the person on whose wage record benefits are claimed; and 18 (E) state the type of benefits claimed. 19 FED. R. CIV. P. SUPP SS RULE 2(b)(1)(A)–(E). Additionally, Rule 2(b)(2) provides that 20 the complaint may “include a short and plain statement of the grounds for relief.” Id. at 21 2(b)(2). 22 In his Complaint, Plaintiff: (1) states that he brings this action pursuant to 42 U.S.C. 23 § 405(g); (2) identifies the final decision of the Commissioner to be reviewed as the 24 Appeals Council’s June 6, 2023 denial of Plaintiff’s request for review of the 25 Administrative Law Judge’s unfavorable decision; (3) provides his name and states that he 26 resides in La Mesa, California, which is within San Diego County; (4) states that he is 27 claiming benefits on his own wage record; and (5) states the type of benefits claimed, 28 namely, Social Security Disability and Supplemental Security Income benefits. (Doc. 1 at 1 || 1-2.) Plaintiff further includes that he “is disabled” and that the “conclusions and findings 2 || of fact of the defendant are not supported by substantial evidence and are contrary to law 3 regulation.” (d. at 2.) 4 Plaintiff's Complaint satisfies all pleading requirements of Rule 2(b) of the 5 Supplemental Rules, and there is no indication that the Complaint is frivolous, malicious 6 ||or seeks monetary relief from a defendant who is immune from such relief. Accordingly, 7 Court finds that the Complaint survives screening under 28 U.S.C. § 1915(e)(2)(B). 8 Ht. CONCLUSION 9 Based on the foregoing considerations, the Court GRANTS Plaintiff's Motion for 10 Leave to Proceed IFP (Doc. 2). 11 In accordance with Rule 3 of the Supplemental Rules, and this District’s General 12 ||Order 747, a notice of electronic filing shall be transmitted to the Social Security 13 || Administration’s Office of General Counsel and to the United States Attorney’s Southern 14 || District of California office in lieu of service of asummons. No further action by Plaintiff 15 ||is needed to effect service of the Complaint, as the Clerk’s Office already transmitted the 16 |/notice of electronic filing of the Complaint to Defendant in the instant case. (See Doc. 3 17 (‘The Notice of Electronic Filing of the complaint sent by the court to the Commissioner 18 ||suffices for service of the complaint. The Plaintiff need not serve a summons and 19 ||}complaint under Civil Rule 4.”’).) 20 IT IS SO ORDERED. 21 DATE: August 30, 2023 nig Bil dat 3 HON. RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 24 25 26 27 28