1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETE AMEND, Case No.: 20cv1566-LL 12 Plaintiff,

ORDER DENYING WITHOUT

13 v. PREJUDICE PLAINTIFF’S MOTION

TO PROCEED IN FORMA

14 ANDREW SAUL,

PAUPERIS AND DISMISSING

15 Defendant. COMPLAINT WITH LEAVE TO

AMEND

16 17 [ECF No. 2]

18 Currently before the Court is Plaintiff’s Motion for Leave to Proceed in forma 19 pauperis. ECF No. 2. Plaintiff, proceeding through counsel, has submitted a Complaint 20 for judicial review of a final decision of the Commissioner of Social Security. ECF No. 1 21 (“Compl.”). The Court reviews Plaintiff’s Complaint under 28 U.S.C. § 1915(e), as 22 required when a Plaintiff files a Motion to Proceed IFP. Upon review of Plaintiff’s 23 Motion and Complaint, the Court finds Plaintiff’s Complaint does not sufficiently state a 24 claim for relief. Accordingly, Plaintiff’s Motion to Proceed IFP is DENIED WITHOUT 25 PREJUDICE, and Plaintiff’s Complaint is DISMISSED WITH LEAVE TO AMEND. 26 /// 27 /// 28 1 I. MOTION TO PROCEED IFP 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee. See 4 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the 5 entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 6 1915(a). A federal court may authorize the commencement of an action without the 7 prepayment of fees if the party submits an affidavit, including a statement of assets 8 showing that he is unable to pay the required filing fee. 28 U.S.C. § 1915(a). 9 The determination of indigency falls within the district court's 10 discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 11 (“Section 1915 typically requires the reviewing court to exercise its sound discretion in 12 determining whether the affiant has satisfied the statute's requirement of indigency.”), 13 reversed on other grounds by 506 U.S. 194 (1993). It is well-settled that a party need not 14 be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 15 U.S. 331, 339-40 (1948). “An affidavit in support of an IFP application is sufficient 16 where it alleges that the affiant cannot pay the court costs and still afford the necessities 17 of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted). 18 Here, Plaintiff’s affidavit of assets indicates he is not employed. ECF No. 2 at 2. 19 Plaintiff attests his only source of income is food stamps in the amount of $190.00 a 20 month. ECF No. 2 at 2, 5. Plaintiff claims monthly expenses of $1,295.00. Id. at 5. In 21 addition, Plaintiff states he has used his residence (valued at $125,000) as collateral for a 22 bank loan of $40,000 to cover his monthly expenses. Id. at 2, 5. Plaintiff’s only other 23 significant asset is a vehicle valued at $500. Id. at 3. Plaintiff further attests to have 24 incurred an additional $25,000 in credit card debt. Id. at 5. 25 Based on the information provided, the Court finds Plaintiff has established he is 26 unable to pay the required filing fee without impairing his ability to pay for life’s 27 necessities, but DENIES WITHOUT PREJUDICE the motion for failure to state a 28 claim for relief. 1 II. INITIAL SCREENING 2 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 3 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which 4 relief may be granted,” or “seeks monetary relief against a defendant who is immune 5 from relief.” 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 6 2001) (“[T]he provisions of 28 U.S.C. §1915(e)(2)(B) are not limited to prisoners.”); 7 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (noting that “section 8 1915(e) not only permits but requires a district court to dismiss an in forma pauperis 9 complaint that fails to state a claim”). 10 All complaints must contain a “short and plain statement of the claim showing that 11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 12 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (citation omitted). 15 In the context of a social security appeal, courts within the Ninth District have 16 established four elements necessary for a complaint to survive a sua sponte screening: 17 First, the plaintiff must establish that he has exhausted [his] 18 administrative remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty days after 19 notice of a final decision. Second, the complaint must indicate 20 the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiff's disability and 21 when the plaintiff claims she became disabled. Fourth, the 22 complaint must contain a plain, short, and concise statement identifying the nature of the plaintiff's disagreement with the 23 determination made by the Social Security Administration and 24 show that the plaintiff is entitled to relief.

25 Montoya v. Colvin, No. 2:16-cv-00454-RFB-NJK, 2016 U.S. Dist. LEXIS 30114, at *3-5 26 (D. Nev. Mar. 8, 2016) (collecting cases); see also Skylar v. Saul, No. 19cv1581-NLS, 27 2019 U.S. Dist. LEXIS 145819, at *2-3 (S.D. Cal. Aug. 27, 2019). 28 1 Here, Plaintiff’s Complaint fails to sufficiently identify the nature of his 2 disagreement with the Social Security Administration’s determination. See Compl. 3 Instead, Plaintiff’s Complaint simply lists the factual and legal findings made by the ALJ, 4 along with conclusory allegations that: (1) the ALJ “failed to properly evaluate” 5 Plaintiff’s testimony and the testimony of his treating physician; and that (2) the ALJ’s 6 decision is “not supported by substantial evidence.” Id. at 3-4. 7 This is not sufficient. Plaintiff makes no attempt to explain how the ALJ failed to 8 properly evaluate his testimony or the testimony of his treating physician. See Parker D. 9 v. Saul, No. 3:19-cv-01818-AHG, 2019 U.S. Dist. LEXIS 176704, at *3 (S.D. Cal. Oct. 10 10, 2019) (dismissing complaint where plaintiff failed to “explain what medical evidence 11 or testimony conflicts with the Commissioner’s decision.”). Similarly, Plaintiff’s mere 12 assertion that the ALJ’s decision is “not supported by substantial evidence” provides no 13 specific claims or facts to allow Defendant to form the basis of a defense. See Skylar, 14 2019 U.S. Dist. LEXIS 145819, at *4 (dismissing complaint where plaintiff merely 15 alleged a lack of “substantial evidence” to support the ALJ’s finding). Such conclusory 16 allegations are insufficient to state a claim for relief. See Williams v. Berryhill, No. 18- 17 cv-2678-AJB-BLM, 2019 U.S. Dist. LEXIS 104445, at *3 (S.D. Cal. June 20, 2019). 18 III. CONCLUSION 19 For the reasons stated above, the Court hereby DENIES WITHOUT 20 PREJUDICE Plaintiff’s IFP Motion and DISMISSES Plaintiff’s Complaint WITH 21 LEAVE TO AMEND. Plaintiff is granted until October 16, 2020 to file an 22 amended complaint that cures the deficiencies set forth above. If Plaintiff fails to do so 23 within the time permitted, the Court may enter a final order dismissing the action with 24 prejudice. 25 IT IS SO ORDERED. 26 27 28 1 Dated: September 17, 2020 =

3 Honorable Linda Lopez 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28