1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 20CV1432-BLM 11 OSCAR FRED JENKS,

12 Plaintiff, ORDER DENYING WITHOUT

PREJUDICE PLAINTIFF’S

13 v. APPLICATION TO PROCEED IN

DISTRICT COURT WITHOUT

14 ANDREW SAUL, COMMISSIONER OF SOCIAL

PREPAYING OF FEES OR COSTS AND

SECURITY,

15 DISMISSING COMPLAINT WITH LEAVE Defendant. TO AMEND 16 [ECF NO. 3] 17

18 19 The instant matter was initiated on July 24, 2020 when Plaintiff filed a complaint “to seek 20 judicial review of the Commissioner’s decision and [to] request[] that this court reverse that 21 decision, or in the alternative, to remand this matter for a new hearing.” ECF No. 1 at 2. That 22 same day, Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or 23 Costs. ECF No. at 3. Having reviewed the complaint and motion, the Court finds that Plaintiff’s 24 complaint does not sufficiently state a claim for relief. Accordingly, Plaintiff’s Application to 25 Proceed in District Court without Prepaying Fees or Costs is DENIED WITHOUT PREJUDICE, 26 and the complaint is DISMISSED WITH LEAVE TO AMEND. 27 Application to Proceed in District Court without Prepaying Fees or Costs 28 All parties instituting any civil action, suit, or proceeding in a district court of the United 1 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. 2 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if 3 she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states: 4 [A]ny court of the United States may authorize the commencement, prosecution 5 or defense of any suit, action or proceeding ... without prepayment of fees or 6 security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or 7 give security therefor. 8 9 The determination of indigency falls within the district court's discretion. California Men's 10 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S. 11 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion 12 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is 13 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont 14 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. 15 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 16 poverty pay or give security for costs ... and still be able to provide for himself and dependents 17 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must 18 be employed to assure that federal funds are not squandered to underwrite, at public expense, 19 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his 20 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to 21 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to 22 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff 23 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement 24 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because 25 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the $60 filing 26 fee). Moreover, the facts as to the affiant's poverty must be stated “with some particularity, 27 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 28 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status. 1 According to his affidavit in support of application, Plaintiff is not employed, has no income, and 2 receives $194 per month in food stamps. ECF No. 3 at 1-2. Plaintiff does not have a checking 3 or savings account and does not own a home or car. Id. at 2-3. Plaintiff spends approximately 4 $194 per month on food, $20 per month on laundry and/or dry cleaning, and $15 per month on 5 transportation. Id. at 4. Plaintiff does not expect any major changes to his monthly income, 6 expenses, assets, or liabilities over the next twelve months. Id. at 5. Based on the foregoing, 7 the Court finds that Plaintiff has established that he is unable to pay the $400 filing fee without 8 impairing his ability to pay for life’s necessities but DENIES WITHOUT PREJUDICE the motion 9 for failure to state a claim for relief. 10 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a) 11 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are 12 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122, 13 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar. 14 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2) 15 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a 16 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 17 1126–27. 18 To survive, all complaints must contain “a short and plain statement of the claim showing 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 20 announces does not require ‘detailed factual allegations,’ but it demands more than an 21 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 22 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, 23 “recitals of elements of a cause of action, supported by mere conclusory statements do not 24 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning “the 25 pleaded factual content allows the court to draw the reasonable inference that the defendant is 26 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. 27 at 556, 570)). “When there are well-pleaded factual allegations, a court should assume their 28 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 1 556 U.S. at 679. Social security appeals are not exempt from the general screening requirements 2 for IFP cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. 3 Mar. 8, 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)). 4 In the context of a social security appeal, courts within the Ninth District have established 5 four elements necessary for a complaint to survive a screening: 6 First, the plaintiff must establish that she has exhausted her administrative 7 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced 8 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 9 state the nature of the plaintiff's disability and when the plaintiff claims she became 10 disabled. Fourth, the complaint must contain a plain, short, and concise statement 11 identifying the nature of the plaintiff's disagreement with the determination made by the Social Security Administration and show that the plaintiff is entitled to relief. 12 13 Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL 14 890922 at *2). With regard to element four, a complaint is insufficient if it merely states that 15 the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012 16 WL 2521753 at *3 (“Every plaintiff appealing an adverse decision of the Commissioner believes 17 that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege 18 facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead, 19 the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the 20 Commissioner’s decision was wrong.” Id. at *2. 21 After reviewing the complaint, the Court finds that Plaintiff failed to state facts sufficient 22 to state a claim for relief. The complaint does not “state the nature of the plaintiff's disability 23 and when the plaintiff claims []he became disabled.” Skylar, 2019 WL 4039650 at *1. Plaintiff 24 alleges “[t]here is no substantial medical or vocational evidence” to support the ALJ’s 25 conclusions; “[t]here is no substantial evidence . . . to support the Commissioner’s finding that 26 plaintiff could perform any substantial gainful activity;” and that the evidence can only support 27 a finding of disability. ECF No. 1 at 2-3. The complaint lacks “a plain, short, and concise 28 statement identifying the nature of the plaintiff's disagreement with the determination made by 1 || the Social Security Administration.” Skylar, 2019 WL 4039650 at *1. Plaintiff states that the 2 || decision was not supported by medical or vocational evidence and that there is new and 3 ||material evidence that warrants remand of this matter, but provides no specific claims or facts 4 allow Defendant to form the basis of a defense. ECF No. 1 at 3. Accordingly, □□□□□□□□□□□ 5 || complaint is DISMISSED WITH LEAVE TO AMEND.' 6 IT 1S SO ORDERED.

8 ||Dated: 8/4/2020 lxiobee Mager 9 Hon. Barbara L. Major United States Maaistrate Judae 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 The Court notes that Plaintiff's counsel's firm has received several dismissals in other cases for 25 same issue and has been “strongly urged” numerous times “to reconsider using form complaints, which fail to comply with Rule 8 and the IFP statute and waste the Court's 26 resources.” Irizarry v. Berryhill, S.D. Cal. No. 19cv476-AJB(NLS); see also Williams v. Berryhill, 27 ||S.D. Cal. No. 18cv2678-AJB(BLM); Maye v. Berryhill, S.D. Cal. No. 19CV110-AJB(WVG); and Copenhaver v. Berryhill, S.D. Cal. No. 18CV790-AJB(MDD).