1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BLAKE R., Case No.: 3:20-cv-1759-AHG 12 Plaintiff, ORDER GRANTING MOTION FOR

LEAVE TO PROCEED IN FORMA

13 v.

PAUPERIS

14 ANDREW SAUL, Commissioner of Social Security, [ECF No. 8] 15 Defendant. 16

17 On September 8, 2020, Plaintiff Blake R. (“Plaintiff”) brought this action against the 18 Commissioner of Social Security, Andrew Saul, seeking judicial review of the 19 Commissioner’s final administrative decision denying his application for Social Security 20 Supplemental Security Income Disability Benefits for lack of disability. ECF No. 1. Along 21 with his Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis 22 (“IFP”) under 28 U.S.C. § 1915. ECF No. 2. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the 23 Court sua sponte screened Plaintiff’s complaint to evaluate whether his complaint 24 sufficiently stated a claim upon which relief may be granted, and dismissed Plaintiff’s 25 complaint without prejudice as boilerplate and conclusory. ECF No. 6 at 2–5. As such, 26 Plaintiff’s motion to proceed IFP was denied as moot without prejudice. Id. at 5. Plaintiff 27 timely filed his amended complaint on September 28, 2020. ECF No. 7. Along with the 28 1 amended complaint, Plaintiff filed a renewed Motion to Proceed IFP, which the Court 2 examines in this Order. ECF No. 8. 3 I. LEGAL STANDARD 4 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 5 Court must determine whether an applicant properly shows an inability to pay the $400 6 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an 7 applicant must also provide the Court with a signed affidavit “that includes a statement of 8 all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). 9 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint 10 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 11 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to 12 dismiss an in forma pauperis complaint that fails to state a claim.”). 13 II. DISCUSSION 14 A. Motion to Proceed IFP 15 An applicant need not be completely destitute to proceed IFP, but he must adequately 16 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 17 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs 18 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 19 Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, 20 regulation, or case law to determine when someone is poor enough to earn IFP status.” 21 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 22 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 23 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 24 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 25 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 26 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 27 An adequate affidavit should also state supporting facts “with some particularity, 28 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not 2 grant IFP to an applicant who is “financially able, in whole or in material part, to pull his 3 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 4 Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting 5 that courts often reject IFP applications when applicants “can pay the filing fee with 6 acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a 7 factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or 8 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. 9 Here, Plaintiff states in his affidavit that he has had no income1 for the last 12 10 months, and expects to receive $668 in unemployment next month. ECF No. 8 at 1–2. 11 Though he has $5,000 in savings, his affidavit illustrates that his $1,065 in monthly 12 expenses for rent, groceries, and his vehicle of far exceed his expected unemployment 13 income. Id. at 2–5. Accordingly, Plaintiff has represented to the Court that his savings goes 14 toward his rent, he has limited sources of income due to the COVID-19 pandemic, and he 15 has no other source of income or valuable assets, other than his vehicle. Id. 1–5. 16 Considering the information in the affidavit, the Court finds that Plaintiff has sufficiently 17 shown an inability to pay the $400 filing fee under § 1915(a). See, e.g., Tuck v. Am. 18 Accounts & Advisors, Inc., No. 19cv671-GPC-NLS, 2019 WL 2514733, at *2 (S.D. Cal. 19 June 18, 2019) (granting motion to proceed IFP though plaintiff had a car valued at $5,000, 20 21 22 1 Though Plaintiff states that he has made zero income for the past twelve months, he does 23 note that he worked for Wag from May 2019 to August 2020. ECF No. 8 at 2. However, he left the accompanying gross monthly pay section blank. See id. Since he is requesting 24 to proceed IFP, the Court reminds Plaintiff that he had a duty to adequately prove his 25 indigence. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948) (“An applicant need not be completely destitute to proceed IFP, but they must adequately 26 prove their indigence.”); United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 27 (noting that an adequate affidavit should state supporting facts “with some particularity, definiteness and certainty.”). In this instance, the Court will infer that Plaintiff’s $5,000 in 28 1 noting that, “because Plaintiff’s monthly expenses exceed her monthly income, the Court 2 finds that Plaintiff is unable to pay the filing fee.”) 3 B. Screening under 28 U.S.C. 1915(e) 4 As discussed above, every complaint filed pursuant to the IFP provisions of 28 5 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 6 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 7 complaints that are frivolous or malicious, fail to state a claim on which relief may be 8 granted, or seek monetary relief from defendants who are immune from such relief. See 28 9 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 10 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 11 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 12 right, such as an appeal of the Commissioner's denial of social security disability benefits 13 [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 14 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 15 Lopez, 203 F.3d at 1129. 16 Rule 8 sets forth the federal pleading standard used to determine whether a complaint 17 states a claim upon which relief may be granted. FED. R. CIV. P. 8; see also Ashcroft v. 18 Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short and plain 19 statement of the claim showing that the pleader is entitled to relief.”); Bell Atlantic Corp. 20 v. Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual allegations” are not 21 required, but a plaintiff must provide “more than labels and conclusions, and a formulaic 22 recitation of the elements of a cause of action” to justify relief). A proper pleading “does 23 not require detailed factual allegations, but it demands more than an unadorned, the- 24 defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions 25 . . . will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 26 factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted) 27 (referring to FED. R. CIV. P. 8). 28 For example, in social security cases, “[t]he plaintiff must provide a statement 1 identifying the basis of the plaintiff's disagreement with the ALJ’s determination and must 2 make a showing that he is entitled to relief, ‘in sufficient detail such that the Court can 3 understand the legal and/or factual issues in dispute so that it can meaningfully screen the 4 complaint pursuant to § 1915(e).’” Jaime B. v. Saul, No. 19cv2431-JLB, 2020 WL 5 1169671, at *2 (S.D. Cal. Mar. 10, 2020) (quoting Graves v. Colvin, No. 15cv106-RFB- 6 NJK, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015)). “Every plaintiff appealing an 7 adverse decision of the Commissioner believes that the Commissioner was wrong. The 8 purpose of the complaint is to briefly and plainly allege facts supporting the legal 9 conclusion that the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, 10 at *2. 11 Having reviewed Plaintiff’s Amended Complaint, the Court finds Plaintiff has 12 sufficiently stated a claim upon which relief may be granted. Specifically, Plaintiff appeals 13 the Commissioner’s denial of his benefits application on the grounds that: (1) “The ALJ 14 rejected the opinions of both examining physicians (consultative2 and treating3) without 15 providing legally sufficient reasons as required by the Social Security Regulations and case 16 law;” and (2) “There is no substantial evidence in the record to support the Commissioner's 17 finding that plaintiff could perform any substantial gainful activity.”4 ECF No. 7 at 3. The 18

19 20 2 Plaintiff explains that a “psychiatrist conducted a consultative examination [] and opined that [Plaintiff] is markedly limited in his ability to maintain concentration, persistence and 21 pace; adapt to changes in a workplace setting; and cannot manage his own funds[.]” ECF 22 No. 7 at 3. 23 3 Plaintiff explains that a “treating psychiatrist provided a functional assessment and opined that [Plaintiff] is markedly limited in his ability to maintain concentration, persistence or 24 pace; and extreme limitation in maintaining social functioning[.]” ECF No. 7 at 3. 25 4 Specifically, Plaintiff explains that the ALJ found Plaintiff to have the following work- 26 related limitations: “understand, remember and carry out simple, routine tasks with no 27 interaction with the general public and only occasional work-related, non-personal, non- social interaction with coworkers and supervisors; and is able to perform jobs requiring 28 1 || Court finds these allegations sufficiently specific to state a claim for reversal or remand of 2 Commissioner’s decision. 3 CONCLUSION 4 Based on the foregoing considerations, the Court GRANTS Plaintiff's Motion to 5 || Proceed IFP (ECF No. 8). 6 In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court 7 DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States 8 Marshal Service (“USMS”) Form 285 along with certified copies of this Order and his 9 || Amended Complaint (ECF No. 7). Once Plaintiff receives this “IFP Package,” the Court 10 || ORDERS him to complete the Form 285 and forward all documents in the package to the 11 USMS. Upon receipt, the USMS will serve a copy of the Amended Complaint and 12 ||summons on Defendant as directed by Plaintiff on the USMS Form 285. The United States 13 || will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. Civ. P. 4(c)(3) 14 15 IT IS SO ORDERED. 16 || Dated: September 30, 2020 7 _Abiomt. Xl Honorable Allison H. Goddard 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28