1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAKONNIE M., Case No.: 3:22-cv-00985-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, [ECF No. 3] 15 Defendant. 16 17 18 19 On July 6, 2022, Plaintiff Lakonnie M. (“Plaintiff”) brought this action against the 20 Commissioner of Social Security (“Defendant” or “Commissioner”), seeking judicial 21 review of the Commissioner’s final administrative decision denying her application for 22 Social Security Disability Insurance benefits for lack of disability. ECF No. 1. Along with 23 her Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP”) 24 under 28 U.S.C. § 1915. ECF No. 3. 25 I. LEGAL STANDARD 26 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 27 Court must determine whether an applicant properly shows an inability to pay the $400 28 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an 1 applicant must also provide the Court with a signed affidavit “that includes a statement of 2 all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). 3 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint 4 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 5 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to 6 dismiss an in forma pauperis complaint that fails to state a claim.”). 7 II. DISCUSSION 8 A. Motion to Proceed IFP 9 An applicant need not be completely destitute to proceed IFP, but she must 10 adequately prove her indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 11 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court 12 costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 13 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, 14 regulation, or case law to determine when someone is poor enough to earn IFP status.” 15 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 16 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 17 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 18 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 19 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 20 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 21 An adequate affidavit should also state supporting facts “with some particularity, 22 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 23 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not 24 grant IFP to an applicant who is “financially able, in whole or in material part, to pull h[er] 25 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 26 Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting 27 that courts often reject IFP applications when applicants “can pay the filing fee with 28 acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a 1 factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or 2 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. 3 Here, Plaintiff states in her affidavit that she receives $179.00 per month in public 4 assistance. ECF No. 3 at 2. Her expected monthly income does not cover her $2,634.00 in 5 monthly expenses for rent, utilities, food, insurance, and medication. Id. at 4–5. Plaintiff 6 has no other source of income or valuable assets, aside from her vehicle. Id. at 1–5. Plaintiff 7 explains that she has “no income, [is] not paying expenses at this time, [and has] filed 8 bankruptcy.” Id. at 5. Considering the information in the affidavit, the Court finds that 9 Plaintiff has sufficiently shown an inability to pay the $400 filing fee under § 1915(a). 10 B. Screening under 28 U.S.C. 1915(e) 11 As discussed above, every complaint filed pursuant to the IFP provisions of 28 12 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 13 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 14 complaints that are frivolous or malicious, fail to state a claim on which relief may be 15 granted, or seek monetary relief from defendants who are immune from such relief. See 28 16 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 17 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 18 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 19 right, such as an appeal of the Commissioner’s denial of social security disability benefits 20 [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 21 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 22 Lopez, 203 F.3d at 1129. 23 Rule 8 sets forth the federal pleading standard used to determine whether a complaint 24 states a claim upon which relief may be granted. FED. R. CIV. P. 8; see also Ashcroft v. 25 Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short and plain 26 statement of the claim showing that the pleader is entitled to relief.”); Bell Atlantic Corp. 27 v. Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual allegations” are not 28 required, but a plaintiff must provide “more than labels and conclusions, and a formulaic 1 recitation of the elements of a cause of action” to justify relief). A proper pleading “does 2 not require detailed factual allegations, but it demands more than an unadorned, the- 3 defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions 4 . . . will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 5 factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted) 6 (referring to FED. R. CIV. P. 8).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAKONNIE M., Case No.: 3:22-cv-00985-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, [ECF No. 3] 15 Defendant. 16 17 18 19 On July 6, 2022, Plaintiff Lakonnie M. (“Plaintiff”) brought this action against the 20 Commissioner of Social Security (“Defendant” or “Commissioner”), seeking judicial 21 review of the Commissioner’s final administrative decision denying her application for 22 Social Security Disability Insurance benefits for lack of disability. ECF No. 1. Along with 23 her Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP”) 24 under 28 U.S.C. § 1915. ECF No. 3. 25 I. LEGAL STANDARD 26 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 27 Court must determine whether an applicant properly shows an inability to pay the $400 28 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an 1 applicant must also provide the Court with a signed affidavit “that includes a statement of 2 all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). 3 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint 4 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 5 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to 6 dismiss an in forma pauperis complaint that fails to state a claim.”). 7 II. DISCUSSION 8 A. Motion to Proceed IFP 9 An applicant need not be completely destitute to proceed IFP, but she must 10 adequately prove her indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 11 339–40 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court 12 costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 13 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, 14 regulation, or case law to determine when someone is poor enough to earn IFP status.” 15 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 16 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 17 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 18 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 19 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 20 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 21 An adequate affidavit should also state supporting facts “with some particularity, 22 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 23 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not 24 grant IFP to an applicant who is “financially able, in whole or in material part, to pull h[er] 25 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 26 Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting 27 that courts often reject IFP applications when applicants “can pay the filing fee with 28 acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a 1 factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or 2 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. 3 Here, Plaintiff states in her affidavit that she receives $179.00 per month in public 4 assistance. ECF No. 3 at 2. Her expected monthly income does not cover her $2,634.00 in 5 monthly expenses for rent, utilities, food, insurance, and medication. Id. at 4–5. Plaintiff 6 has no other source of income or valuable assets, aside from her vehicle. Id. at 1–5. Plaintiff 7 explains that she has “no income, [is] not paying expenses at this time, [and has] filed 8 bankruptcy.” Id. at 5. Considering the information in the affidavit, the Court finds that 9 Plaintiff has sufficiently shown an inability to pay the $400 filing fee under § 1915(a). 10 B. Screening under 28 U.S.C. 1915(e) 11 As discussed above, every complaint filed pursuant to the IFP provisions of 28 12 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 13 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 14 complaints that are frivolous or malicious, fail to state a claim on which relief may be 15 granted, or seek monetary relief from defendants who are immune from such relief. See 28 16 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 17 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 18 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 19 right, such as an appeal of the Commissioner’s denial of social security disability benefits 20 [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 21 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 22 Lopez, 203 F.3d at 1129. 23 Rule 8 sets forth the federal pleading standard used to determine whether a complaint 24 states a claim upon which relief may be granted. FED. R. CIV. P. 8; see also Ashcroft v. 25 Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short and plain 26 statement of the claim showing that the pleader is entitled to relief.”); Bell Atlantic Corp. 27 v. Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual allegations” are not 28 required, but a plaintiff must provide “more than labels and conclusions, and a formulaic 1 recitation of the elements of a cause of action” to justify relief). A proper pleading “does 2 not require detailed factual allegations, but it demands more than an unadorned, the- 3 defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions 4 . . . will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 5 factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted) 6 (referring to FED. R. CIV. P. 8). 7 For example, in social security cases, “[t]he plaintiff must provide a statement 8 identifying the basis of the plaintiff's disagreement with the ALJ’s determination and must 9 make a showing that he is entitled to relief, ‘in sufficient detail such that the Court can 10 understand the legal and/or factual issues in dispute so that it can meaningfully screen the 11 complaint pursuant to § 1915(e).’” Jaime B. v. Saul, No. 19cv2431-JLB, 2020 WL 12 1169671, at *2 (S.D. Cal. Mar. 10, 2020) (quoting Graves v. Colvin, No. 15cv106-RFB- 13 NJK, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015)). “Every plaintiff appealing an 14 adverse decision of the Commissioner believes that the Commissioner was wrong. The 15 purpose of the complaint is to briefly and plainly allege facts supporting the legal 16 conclusion that the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, 17 at *2. 18 Having reviewed Plaintiff’s Complaint, the Court finds Plaintiff has sufficiently 19 stated a claim upon which relief may be granted. Plaintiff recounted the ALJ’s decision 20 and then explained that she appeals that final decision on the grounds that “(a) the ALJ did 21 not state clear and convincing reasons for rejecting the symptom and limitation testimony 22 that [Plaintiff] could not work on a regular and continuing basis because of persistent 23 vertigo twice per month, needing a walker twice per month, and severe migraine 24 headaches; (b) the ALJ did not properly weigh the medical evidence that [Plaintiff] had 25 more limitations as expressed by Dr. Chu and Dr. Spellman; (c) the ALJ finding of the 26 ability to perform work is not supported by substantial evidence because he failed to 27 assume that [Plaintiff] worked as a nurse practitioner; and (d) the ALJ finding of a non- 28 severe mental impairment lacked the support of substantial evidence.” ECF No. 1 at 2–3. 1 || The Court finds these allegations sufficiently specific to state a claim for reversal or remand 2 || of the Commissioner’s decision. 3 CONCLUSION 4 Based on the foregoing considerations, the Court GRANTS the Plaintiff's Motion > || to Proceed IFP (ECF No. 3). 6 In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court 7 || DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States 8 || Marshal Service (“USMS”) Form 285 along with certified copies of this Order and his ? Complaint (ECF No. 1). Once Plaintiff receives this “IFP Package,” the Court ORDERS 10 to complete the Form 285 and forward all documents in the package to the USMS. Upon receipt, the USMS will serve a copy of the Amended Complaint and summons on 12 Defendant as directed by Plaintiff on the USMS Form 285. The United States will advance 13 1 all costs of service. See 28 U.S.C. § 1915(d); FED. R. Civ. P. 4(c)(3) 14 15 IT IS SO ORDERED. 16 || Dated: July 7, 2022 17 _ Anwar. □□ Honorable Allison H. Goddard 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28