Ly 2 .

4

6

7

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || JASON G., Case No.: 3:20-cv-01593-RBM Plaintify,| ORDER GRANTING PLAINTIFF'S 13 || Vv. APPLICATION TO PROCEED IN 14 || ANDREW M. SAUL, COMMISSIONER | vine FEES OR COSTS 15 OF SOCIAL SECURITY, 16 □ Defendant. 17 [Doe. 2] 18 OO 19 I. INTRODUCTION □ 20 On August 17, 2020, Plaintiff Jason G. (‘Plaintiff’) filed a complaint under 42 21 U.S.C. §405(g) and § 1383(c)(3) seeking judicial review of the Commissioner of the Social 22. || Security Administration’s (“Defendant” or “Commissioner” denial of disability insurance 23 || benefits and supplemental security income under Titles II and XVI of the Social Security 24 || Act (“the Act”). (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a 25 ||motion to proceed in forma pauperis (“IFP Motion”). (Doc. 2.) 26 On April 8, 2020, Chief Judge Larry A. Burns issued an order staying civil cases 27 arising under 42 U.S.C. § 405(g) that were filed on or after March 1, 2020, due to the 28 |] ongoing COVID-19 public health emergency. See Or. of Chief Judge No. 21, sec. 6 (stating

1 part “all civil cases filed on or after March 1, 2020 brought against the Commissioner . 2 ||. . are hereby stayed, unless otherwise ordered by the [Court].”). Initially, the Court held 3 ruling on the IFP Motion in abeyance pursuant to the Chief Judge Order. But, the 4 || COVID-19 pandemic has been ongoing for months and will continue for the foreseeable 5 future. At this time, the Court lifts the stay of this case for the limited of purpose of ruling 6 ||on the IFP Motion which will allow Plaintiff to proceed with effectuating service of the 7 ||summons and complaint to Defendant. Once service is complete, the Court will stay the 8 ||case again until such time as the Commissioner begins normal operations at the Office of 9 || Appellate Hearings Operations and resumes preparation of Certified Administrative 10 |}Records. See Or. of Chief Judge No. 21 at sec. 6. 11 Having reviewed the complaint and IFP Motion, the Court finds that Plaintiffs 12 ||complaint is sufficient to survive a sua sponte screening and further GRANTS Plaintiff s 13 || IFP Motion. . 14 ~ I. DISCUSSION 15 A. Application to Proceed IFP 16 All parties instituting a civil action in a district court of the United States, except an 17 application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). But a 18 litigant who, because of indigency, is unable to pay the required fees or security may 19 || petition the Court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). The 20 || facts of an affidavit of poverty must be stated with some particularity, definiteness, and 21 ||certainty. Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (citing United 22 || States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 23 The determination of indigency falls within the district court’s discretion. Rowland 24 || v. Cal. Men’s Colony, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 25 ||194 (1993). It is well-settled that a party need not be completely destitute to proceed in 26 forma pauperis. Adkins v. E.I. DuPonte de Nemours & Co., 335 U.S. 331, 339-40 (1948); 27 ||see also Escobedo, 787 F.3d at'1235. To satisfy the requirements of 28 U.S.C. § 28 || 1915(a)(1), “an affidavit [of poverty] is sufficient which states that one cannot because of

I ||his poverty pay or give security for costs . . . and still be able to provide[ ] himself and 2 ||dependents with the necessities of life.” Adkins, 335 U.S. at 339 (internal quotations 3 omitted). Nevertheless, “the same even-handed care must be employed to assure that 4 || federal funds are not squandered to underwrite, at public expense, . . . the remonstrances 5 || ofa suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 6 ||v. Ellerthorpe, 586 F. Supp. 848, 850 (D. R.I. 1984) (internal citation omitted). Courts 7 to reject IFP motions where the applicant can pay the filing fee with acceptable 8 || sacrifice to other expenses. See, e.g., Allen v. Kelley, C-91-1635-VRW, 1995 WL 396860, 9 |lat **2-3 (N.D. Cal. June 29, 1995) (Plaintiff initially permitted to proceed IFP, but later 10 |/required to pay $120 filing fee out of $900 settlement proceeds). 11 Here, Plaintiff has sufficiently demonstrated his entitlement to IFP status. 12 || According to his affidavit, Plaintiff's monthly income is $0, he has no savings or cash, and 13 ||he has not worked for the last two years. (Doc. 2 at 1-2.) Plaintiff does not have a spouse 14 || or any other persons relying on him for support. (/d. at 2-3.) Plaintiff owns two vehicles 15 || collectively valued at $1,000. (/d. at 3.) Plaintiff’s only listed expenses comprise of $780 16 year in motor vehicle and AAA insurance. (Id. at 4.) Plaintiff does not expect major 17 ||changes to his monthly income or expenses during the next twelve months. (Id. at 5.) 18 Plaintiffs affidavit sufficiently demonstrated that he is unable to pay the required 19 || $400 filing fee without sacrificing the necessities of life. See Adkins, 335 U.S. at 339-340. 20 || The Court concludes Plaintiff cannot afford to pay any filing fees at this time for this action. 21 || Accordingly, Plaintiff's IFP Motion is GRANTED. 22 B. Sua Sponte Screening 23 Pursuant to 28 U.S.C. § 1915(a), a complaint filed by any person proceeding IFP is 24 subject to a mandatory sua sponte screening. The Court must review and dismiss any 25 ||complaint which is frivolous or malicious, fails to state a claim, or seeks monetary relief 26 from a defendant who is immune. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 27 F.3d: 1122, 1127 (9th Cir. 2000); see also Alamar v. Soc. Sec., 19-cv-0291-GPC-LL, 2019 28 || WL1258846, at *3 (S.D. Cal. Mar. 19, 2019).

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 ||Igbal, 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.” Jd. Instead, plaintiff must state a claim plausible 8 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 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 y. Astrue, 12-cv-00973-SMS, 2012 WL 2521753, at *1 16 ||(E.D. Cal. June 28, 2012)). 17 In social security appeals, courts within the Ninth Circuit have established four 18 || requirements necessary for a complaint to survive a sua sponte screening: 19 First, the plaintiff must establish that she had exhausted her administrative remedies 20 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 21 ‘district in which the plaintiff resides. Third, the complaint must state the nature of 9 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 23 |}. nature of the plaintiff's 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.

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 As to the first requirement, the complaint contains sufficient allegations that Plaintiff 4 ||exhausted his administrative remedies. Plaintiff filed an application for disability 5 insurance benefits and supplemental security income which was subsequently denied. (See 6 Doc. 1 at ff] 1-2, 8.) This became the Commissioner’s final administrative decision. (/d. 7 92.) Plaintiff timely filed the complaint within sixty days of the Commissioner’s final 8 ||decision. (/d.) As to the second requirement, the complaint states Plaintiff “resides in 9 || Oceanside, California, County of San Diego within the jurisdiction of this Court.” (Id. at 10 |/9 4.) As to the third requirement, Plaintiff alleges that he suffers from severe impairments 11 |/including obesity and degenerative changes of the cervical and lumbar spine with 12 |/radiculopathy. (Ud. at § 7.) Plaintiff alleges his onset date of disability as May 26, 2017. 13 ||Ud.) Finally, the complaint alleges the Commissioner’s decision is not supported by 14 substantial evidence under “applicable law and regulations, including the weight of the 15 evidence, Plaintiff's credibility, the medical opinions of his doctors, and any and all other 16 || applicable evidentiary issues...” (Jd. at § 9.) Based upon all of the foregoing, the Court 17 finds Plaintiff has established the four requirements necessary to survive a sua sponte 18 || screening. 19 However, the undersigned notes that Plaintiff's counsel has filed several complaints 20 other social security appeals that contain language nearly verbatim to the instant 21 complaint’s paragraph nine. (id.) Paragraph nine of the complaint appears to be a 22 boilerplate statement identifying the nature of Plaintiffs disagreement with the Social 23 Security Administration’s decision and showing that Plaintiff is entitled to relief. (/d.) 24 While the complaints in other cases have survived a sua sponte screening, the undersigned 25 |}cautions Plaintiffs counsel that such boilerplate filings are discouraged. See Amy D. v. 26 || Saul, 20-cv-1370-BLM, Doc. 4 (S.D. Cal. July 22, 2020) (finding complaint sufficient to 27 survive a sua sponte screening); see also Landon H. v. Saul, 20-cv-910-BGS, Doc. 4 (S.D. 28 || Cal. June 4, 2020); Mia R. v. Saul, 20-cv-840-KSC, Doc. 6 (S.D. Cal. May 20, 2020).

Il. CONCLUSION 2 _ Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiff's IFP Motion is GRANTED. 4 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 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 US.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: September 17, 2020 □ i —spbaandozaage) 19 . IN. ROTH BER DEZ MONTENEGRO 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28