Palmieri v. Kijakazi

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ANTHONY P., Case No.: 3:22-cv-00119-RBM 12 Plaintift,| ORDER GRANTING PLAINTIFF'S 13 || V- APPLICATION TO PROCEED IN 14 || KILOLO KIJAKAZI, ACTING AVING Cees OR COSTS” 15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 [Doc. 2] 18° 19 |} I. INTRODUCTION 20 On January 28, 2022, Plaintiff Anthony P. (“Plaintiff”) filed a complaint under 42 21 ||U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security’s 22 || (“Defendant” or “Commissioner”) denial of disability insurance benefits under Title II of 23 the Social Security Act (“the Act”). (Doc. 1.) Plaintiff did not pay the required filing fee 24 || and instead filed a motion to proceed in forma pauperis (“IFP Motion”). (Doc. 2.) 25 On April 8, 2020, former Chief Judge Larry A. Burns issued an order staying civil 26 || cases arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the 27 || ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 28 || in part “all civil cases filed on or after March 1, 2020 brought against the Commissioner .

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1 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). At this time, the Court 2 || lifts the stay of this case for the limited of purpose of ruling on the IFP Motion which will 3 || allow Plaintiff to proceed with effectuating service of the summons and complaint to 4 ||Defendant. Once service is complete, the Court will stay the case again until such time as 5 || the Commissioner begins normal operations at the Office of Appellate Hearings Operations 6 resumes preparation of Certified Administrative Records. See Or. of Chief Judge No. 7 ||21 at sec. 6. 8 Having reviewed the complaint and IFP Motion, the Court GRANTS □□□□□□□□□□□ 9 ||motion and further finds that Plaintiff's complaint is sufficient to survive sua sponte 10 screening. 11 |} Il. DISCUSSION 12, A. Application to Proceed IFP 13 parties instituting a civil action in a district court of the United States, except an 14 || application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). Buta 15 litigant who, because of indigency, is unable to pay the required fees or security may 16 || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 17 || facts of an affidavit of poverty must be stated with some particularity, definiteness, and 18 ||certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing United 19 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 20 The determination of indigency falls within the district court’s discretion. Rowland 21 Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 22 || 194 (1993). It is well-settled that a party need not be completely destitute to proceed in 23 || forma pauperis. Adkins v. E.I. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 (1948); 24 also Escobedo, 787 F.3d at 1235. To satisfy the requirements of 28 U.S.C. § 25 ||1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of 26 ||his poverty pay or give security for costs . . . and still be able to provide[ ] himself and 27 ||dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 28 omitted). Nevertheless, “the same even-handed care must be employed to assure that 2 .

1 || federal funds are not squandered to underwrite, at public expense, . . . the remonstrances 2 || of a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 3 || v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). Courts 4 ||tend to reject IFP motions where the applicant can pay the filing fee with acceptable 5 || sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 6 **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IFP, but later 7 ||required to pay $120 filing fee out of $900 settlement proceeds). 8 Here, Plaintiff has sufficiently demonstrated his entitlement to IFP status. 9 || According to his affidavit, Plaintiff has not earned any income from employment during 10 || the past twelve months, and he receives $447 per month in public assistance. (Doc. 2 at 1, 11 He has no personal savings, cash, or assets. (/d. at 3-4.) His monthly expenses are 12 ||$300, which comprises of $50 in utilities, $50 in transportation, and $200 in “recreation, 13 || entertainment, newspapers, magazines, etc.” (Ud. at 5.) He does not have a spouse or any 14 || dependents. (/d. at 3-4.) 15 Plaintiff's affidavit sufficiently demonstrated that he is unable to pay the required 16 filing fee without sacrificing the necessities of life. See Adkins, 335 U.S. at 339-340. 17 || The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 18 || Accordingly, Plaintiff's IFP Motion is GRANTED. □ 19 _ B. Sua Sponte Screening □ 20 Pursuant to 28 U.S.C. § 1915(a), a complaint filed by any person proceeding IFP is 21 subject to a mandatory sua sponte screening. The Court must review and dismiss any 22 ||complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 23 a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 24 || F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 25 || WL1258846, at *3 (S.D. Cal. Mar. 19, 2019). 26 To survive, complaints must contain “a short and plain statement of the claim 27 || showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “[T]he pleading 28 || standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands

1 || more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. 2 ||Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 US. 544, 555 3 ||(2007)). And “[t]hreadbare recitals of elements of a cause of action, supported by mere 4 ||conclusory statements do not suffice.” Jd. Instead, plaintiff must state a claim plausible 5 its face, meaning “plaintiff pleads factual content that allows the court to draw the 6 ||reasonable inference that the defendant is liable for the misconduct alleged.” Jd. at 678 (quoting T wombly, 550 U.S. at 556). “When there are well-pleaded factual allegations, a 8 should assume their veracity, and then determine whether they plausibly give rise to 9 entitlement to relief.” Jd. at 679. 10 Social security appeals are not exempt from the general screening requirements for 11 ||IFP cases. Montoya v. Colvin, 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev. 12 || Mar. 8, 2016) (citing Hoagland v. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *1 13 Cal. June 28, 2012)). . 14 In social security appeals, courts within the Ninth Circuit have established four 15 |jelements necessary for a complaint to survive a sua sponte screening: 16 First, the plaintiff must establish that she had exhausted her administrative remedies 17 pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty days after notice of a final decision. Second, the complaint must indicate the judicial 18 district in which the plaintiff resides. Third, the complaint must state the nature of 19 the plaintiff's disability and when the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement identifying the 20 nature of the plaintiff's disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 22 || Skylar v. Saul, 19-cv-1581-NLS, 2019 WL 4039650, at *1 (S.D. Cal. Aug. 27, 2019) 23 ||(quoting Montoya, 2016 WL 890922 at *2). As to element four, a complaint is insufficient 24 |lif it merely alleges the Commissioner was wrong in denying plaintiff benefits. See Skylar, 25 WL 4039650 at *1 (citations omitted); see also Hoagland, 2012 WL 2521753 at *3. 26 || Instead, a complaint “must set forth a brief statement of facts setting forth the reasons why 27 ||the Commissioner’s decision was wrong.” See Skylar, 2019 WL 4039650 at *1 (internal 28 |} citations and quotations omitted).

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1 As to the first element, the complaint contains sufficient allegations that Plaintiff 2 ||exhausted his administrative remedies. Plaintiff filed an application for disability 3 |linsurance benefits, and he is appealing the final administrative decision of the 4 ||Commissioner. (Doc. 1 at ff 1-2.) An administrative law judge (“ALJ”) issued a decision 5 denying Plaintiff's claim for benefits. (/d. at □□□ Plaintiff filed a request for review and 6 ||the appeals council denied it. (Id. at J 2.) Plaintiff timely filed the complaint within sixty: 7 of the Commissioner’s final decision. (/d.) As to the second element, the complaint 8 || states Plaintiff resides “in Oceanside, California .. . within the jurisdiction of this □□□□□□□□□□ 9 ||Ud. at 9 4.) As to the third element, Plaintiff alleges that he is “disabled due to a 10 ||combination of severe physical and mental impairments, including: schizophrenia 11 ||spectrum disorder, Tourette’s syndrome, mood disorder with irritability, depression, 12 |) anxiety, and diminished hearing of his right ear.” (Ud. at. 6.) Plaintiff alleges he became 13 || disabled on April 11, 2019. (d.) This is sufficient to describe the nature and timing of 14 Plaintiff's disability. Finally, the complaint alleges a short plain statement showing 15 |/entitlement to relief. The complaint alleges the ALJ’s decision is unsupported by 16 substantial evidence and are contrary to law and regulation, specifically, the ALJ erred by 17 || failing to consider the opinion of Plaintiff's treating physician in finding that Plaintiff did 18 |/not meet or equal a Listing of Impairments. (/d. at J 7.) 19 Based upon all of the foregoing, the Court finds Plaintiff has established the four 20 || elements necessary to survive sua sponte screening. 21 22 . 23

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1 ‘I. ~CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiff's IFP Motion is GRANTED. 2. The Clerk of Court is DIRECTED to issue a summons as to Plaintiff's 5 ||complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the 6 || named Defendant. In addition, the Clerk of Court is DIRECTED to provide Plaintiff with 7 || certified copies of this Order and the complaint. □ 8 3. Upon receipt of these materials, Plaintiff is DIRECTED to complete Form 9 11285 and forward the materials to the United States Marshals Service. 10 4. Upon receipt, the United States Marshals Service is ORDERED to serve a 11 || copy of the Complaint and summons upon Defendant as directed by Plaintiff on Form 285. 12 || The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIv. 13 4(c)(3). - 14 5. After service is complete, the Court will stay the case again and the stay will 15 automatically lift after Defendant files the Certified Administrative Record. 16 ITISSO ORDERED. 17 Dated: March 11, 2022 □ 18 LUE sags Moilinege 19 HON. RUTH BERMUDEZ MONTENEGRO 0 UNITED STATES MAGISTRATE JUDGE 21 . 22 23 24 25 26 27 |