Kirker v. Saul, No. 3:2020cv00673 - Document 10 (S.D. Cal. 2020)
Court Description: ORDER Granting 9 Plaintiff's Application to Proceed in District Couty Without Paying Fees or Costs (Doc. 9 ). The Clerk of Court is directed to issue a summons as to Plaintiff's Amended complaint and forward it to Plaintiff along with a blank U.S. Marshals Form 285 for the named Defendant. In addition, the Clerk of Court is directed to provide Plaintiff with certified copies of this Order and the amended complaint. Upon receipt of these materials, Plaintiff is directed to complete F orm 285 and forward the materials to the United States Marshals Service. Upon receipt, the United States Marshals Service is ordered to serve a copy of the amended complaint and summons upon Defendant as directed by Plaintiff on Form 285. Signed by M agistrate Judge Ruth Bermudez Montenegro on 9/16/2020. (USM served electronically. Summons, a certified copy of the Amended Complaint (ECF 8 ), a certified copy of this order and a blank USM 285 form sent via U.S. Mail Service to Plaintiff c/o Plaintiff's attorney.) (jdt)
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Kirker v. Saul Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 Case No.: 3:20-cv-00673-LAB-RBM OSCARK., Plaintiff, 12 13 v. 14 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 15 ORDER GRANTING PLAINTIFF'S APPLICATIO N TO PROCEED IN DISTRICT COURT WITHOUT PREPA YING FEES OR COSTS Defendant. 16 [Doc. 9] 17 18 I. 19 INTRODUCTI ON , On September 12, 2020, Plaintiff Oscar K. ("Plaintiff') filed an amended complaint 20 21 . under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the Commissioner of 22· the Social Security Administration's ("Defendant" or "Commissioner") denial of disability 23 insurance benefits and·supplemental security income under Titles II and XVI of the Social 24 Security Act ("the Act"). (Doc. 8.) Plaintiff did not pay the required filing fee and instead 25 filed an amended motion to proceed in forma pauperis ("IFP Motion"). 1 (Doc. 9.) 26 Plaintiff previously filed a complaint and motion to proceed in forma pauperis on April 7, 2020 ("April 7, 2020 IFP Motion"). (Docs. 1, 3.) On September 11, 2020, the undersigned issued a Report and Recommendation ("R&R"), recommending that the initial complaint be dismissed with leave to amend and the April 7, 2020 IFP Motion be denied without prejudice. (Doc. 7.) On September 12, 2020, Plaintiff 1 27 28 1 3:20-cv-00673-RBM Dockets.Justia.com 1 On April 8, 2020, Chief Judge Larry A. Bums issued an order staying civil cases 2 arising under 42 U.S.C. § 405(g) that were filed on.or after March 1, 2020, due to the 3 ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating 4 in part "all civil cases filed on or after March 1, 2020 brought against the Commissioner . 5 .. are hereby stayed, unless otherwise ordered by the [Court]."). Initially, the Court held 6 its ruling on the IFP Motion in abeyance pursuant to the Chief . Judge Order. But, the 7 COVID-19 pandemic has been ongoing for months and will continue for the foreseeable . ) ·8 future. At this time, the Court lifts the stay of this case for the limited of purpose of ruling 9 on the IFP Motion which will allow Plaintiff to proceed with effectuating service of the 10 summons and complaint to Defendant. Once service is complete, the undersigned will stay 11 the case again until such time as the Commissioner begins normal operations at the Office 12 of Appellate Hearings Operations and resumes preparation of Certified Administrative 13 Records. See Or. of Chief Judge No. 21 at sec. 6. 14 Having reviewed the complaint and IFP Motion, the Court finds that Plaintiffs 15 complaint is sufficient to survive a sua sponte screening and further GRANTS Plaintiffs 16 . IFP Motion. II. 17 DISCUSSION Sua Sponte Screening 18 A. 19 Pursuant to 28 U.S.C. § 1915(a), a complaint filed by any person proceeding IFP is 20 also subject to a mandatory sua sponte screening. The Court must review and dismiss any 21 complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 22 from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 23 F.3d 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 24 WL1258846, at *3 (S.D. Cal. Mar. 19, 2019). 25 26 27 · filed the instant amended complaint and amended IFP Motion. These September 12, 2020 filings rendered 28 the pending R&R and April 7, 2020 IFP Motion moot. Therefore, the undersigned withdrew the September 11, 2020 R&R and accepted the instant IFP Motion in place of the April 7, 2020 IFP Motion. 2 3:20-cv-00673-RBM 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." Id. Instead, plaintiff must state a claim plausible 8 on 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." Iqbal, 556 10 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "When there are well-pleaded factual 11 allegations, a court should assume their veracity, and then determine whether they 12 plausibly give rise to an entitlement to relief." Id. at 679. 13 Social security appeals are not exempt from the general screening requirements for 14 IFP 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 18 19 20 21 22 23 24 In social security appeals, courts within the Ninth Circuit have established four requirements necessary for a complaint to survive a·sua sponte screening: 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 days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiffs disability and when the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement identifying the nature of the plaintiffs 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. 3 3:20-cv-00673-RBM 1 Instead, a complaint "must set forth a brief statement of facts· setting forth the reasons why 2 the Commissioner's decision was wrong." Skylar, 2019 WL 4039650, at *2. 3 4 5 6 As to the first requirement, the complaint contains sufficient allegations that Plaintiff exhausted his administrative remedies. Plaintiff filed an application for disability insurance benefits which was subsequently denied. (See Doc. 8 at~ 2.) This became the Commissioner's final administrative decision. (Id.) Plaintiff timely filed the complaint 7 within sixty days of the Commissioner's final decision. (Id.) As to the second requirement, 8 the complaint states Plaintiff "resides in San Diego, CA, within the jurisdiction of this 10 Court." (Id. at~ 4.) As to the third requirement, Plaintiff alleges he "is disabled due to a combination of severe physical and mental impairments ... " including ataxia, spasmodic· 11 torticollis, depression, and pain. (Id. at 12 is October 1, 2010. (Id. at~ 6.) Finally, Plaintiff alleges the Commissioner's decision is not supported by substantial evidence and contrary to law and regulation. (Id. at 7.) 9 13 6-7.) Plaintiff alleges his onset date ofdisability 15 Specifically, Plaintiff alleges the Commissioner failed to address Plaintiffs ataxia, spasmodic torticollis, depression, pain, and failed to give weight to specialists and treating 16 doctors. (Id.) 17 Based upon all of the foregoing, the Court finds Plaintiff has established the four requirements necessary to survive a sua sponte screening. 14 18 19 20 21 22 23 B. Application to Proceed IFP All parties instituting a civil action in a district court of the United States, except an application for a writ of habea.s corpus, must pay a filing fee. 28 U.S.C. § 1914(a). But a litigant who, because of indigency,. is unable to pay the required fees or security may petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(l). The 25 facts of an affidavit of poverty must be stated with some particularity, definiteness, and certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir.. 2015) (citing United 26 States v. McQuade, 647 F.2d 938,940 (9th Cir. 1984)). 27 The determination of indigency falls within the district court's discretion. Rowland v. Cal. Men's Colony, 939 F.2d 854,858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 24 28 4 3:20-cv-00673-RBM 1 194 (1993). It is well-settled that a party need not be completely destitute to proceed in 2 formapauperis. Adkins v. E.I. DuPontedeNemours & Co., 335 U.S. 331, 339-40 (1948); 3 see also Escobedo, 787 F.3d at 1235. 4 1915(a)(l), "an affidavit [of poverty] is sufficient which states that one cannot because of To satisfy the requirements of 28 U.S.C. § 5 his poverty pay or give security for costs ... and still be able to provide[ ] himself and 6 dependents with the necessities of life.". Adkins, 335 U.S. at 339 (internal quotations 7 omitted). Nevertheless, "the same even-handed care must be employed to assure that 8 federal funds are not squandered to underwrite, at public expense, ... the remonstrances 9 of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple 10 v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984} (internal citation omitted). Courts 11 tend to reject IFP motions where the applicant can pay the filing fee with acceptable 12 sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 13 at **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IFP, but later 14 required to pay $120 filing fee out of $900 settlement proceeds). 15 Here, Plaintiff has sufficiently demonstrated his entitlement to IFP statu~. 16 According to his affidavit, Plaintiffs monthly income is $190 from public assistance. 17 (Doc. 9 at 1-2.) Plaintiff has $107 in cash, no savings, $0 in monthly expenses, and he has 18 not worked for the past two years. (Id. at 2, 4-5.) Plaintiff did not list a spouse or any other 19 persons relying on him for support. (Id. at 1-5.) He lives·with his disabled mother. (Id. at 20 5.) He does not expect major changes to his monthly income or expenses during the next 21 twelve months. (Id.) Plaintiff alleges that his disability prevents him from working. (Id.) 22 Plaintiffs affidavit sufficiently demonstrated that he is unable to pay the required 23 $400 filing fee without sacrificing the necessities oflife. See Adkins, 335 U.S. at 339-340. 24 The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 25 Accordingly, Plaintiffs IFP Motion is GRANTED. 26 Ill 27 III 28 Ill 5 3:20-cv-00673-RBM III. 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED: 3 1. 4 2. The Clerk of Court is DIRECTED to issue a summons as to Plaintiffs Plaintiffs IFP Motion·is GRANTED. 5 Amended complaint and forward itto Plaintiff along with a blank U.S. Marshals Form 28.5 6 for the named Defendant. In addition, the .Clerk of Court is DIRECTED to provide 7 Plaintiff with certified copies of this Order and the amended complaint. , 3. 8 9 Upon receipt of these materials, Plaintiff is DIRECTED to complete Form 285 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 amended complaint and summons upon Defendant as directed by Plaintiff on 12 Form 285. The United States will advance all costs of service. See 28 U.S.C. § 1915(d); ·· 13 FED. 14 15 16 17 R. CIV. P. 4(c)(3). 5. After service is complete, the undersigned will staythe case again and the stay will automatically lift after Defendant files the Certi,fied Administrative Record. IT IS SO ORDERED. Dated: September 16, 2020 18 19 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 6 3:20-cv-00673-RBM
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