1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Sergio C., Case No.: 3:20-cv-2270-AHG 12 Plaintiff, ORDER GRANTING MOTION FOR

LEAVE TO PROCEED IN FORMA

13 v.

PAUPERIS

14 ANDREW SAUL, Commissioner of Social Security, [ECF No. 3] 15 Defendant. 16 17 18 On November 12, 2020, Plaintiff Sergio C. (“Plaintiff”) brought this action against 19 the Commissioner of Social Security, Andrew Saul, seeking judicial review of the 20 Commissioner’s final administrative decision denying his application for Social Security 21 Supplemental Security Income Disability Benefits for lack of disability. ECF No. 1. Along 22 with his Complaint, Plaintiff also filed a Motion for Leave to Proceed in forma pauperis 23 (“IFP”) under 28 U.S.C. § 1915. ECF No. 3. 24 I. LEGAL STANDARD 25 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 26 Court must determine whether an applicant properly shows an inability to pay the $400 27 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an 28 applicant must also provide the Court with a signed affidavit “that includes a statement of 1 all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a). 2 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint 3 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 4 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to 5 dismiss an in forma pauperis complaint that fails to state a claim.”). 6 II. DISCUSSION 7 A. Motion to Proceed IFP 8 An applicant need not be completely destitute to proceed IFP, but he must adequately 9 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 10 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs 11 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 12 Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, 13 regulation, or case law to determine when someone is poor enough to earn IFP status.” 14 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case- 15 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty 16 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 17 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon 18 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506 19 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). 20 An adequate affidavit should also state supporting facts “with some particularity, 21 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 22 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not 23 grant IFP to an applicant who is “financially able, in whole or in material part, to pull his 24 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. 25 Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting 26 that courts often reject IFP applications when applicants “can pay the filing fee with 27 acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a 28 factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or 1 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940. 2 Here, Plaintiff states in his affidavit that he has had no income for the last 12 months 3 other than the $194 worth of food stamps he receives and does not anticipate having any 4 income in the next month. ECF No. 3 at 1–2. He has not been employed in the past two 5 years and does not have any savings. Id. at 2. He also does not own any assets and receives 6 assistance for rent, utilities, and laundry from the Impact program. Id. at 3-5. Considering 7 the information in the affidavit, the Court finds that Plaintiff sufficiently has shown an 8 inability to pay the $400 filing fee under § 1915(a). 9 B. Screening under 28 U.S.C. 1915(e) 10 As discussed above, every complaint filed pursuant to the IFP provisions of 28 11 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section 12 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss 13 complaints that are frivolous or malicious, fail to state a claim on which relief may be 14 granted, or seek monetary relief from defendants who are immune from such relief. See 28 15 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening 16 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1 17 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of 18 right, such as an appeal of the Commissioner's denial of social security disability benefits 19 [under 42 U.S.C. 405(g)]”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 20 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); 21 Lopez, 203 F.3d at 1129. 22 Rule 8 sets forth the federal pleading standard used to determine whether a complaint 23 states a claim upon which relief may be granted. Fed. R. Civ. P. 8; see also Ashcroft v. 24 Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short and plain 25 statement of the claim showing that the pleader is entitled to relief”); Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual allegations” are not 27 required, but a plaintiff must provide “more than labels and conclusions, and a formulaic 28 recitation of the elements of a cause of action” to justify relief). A proper pleading “does 1 not require detailed factual allegations, but it demands more than an unadorned, the- 2 defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions 3 . . . will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 4 factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted) 5 (referring to Fed. R. Civ. P. 8). 6 For example, in social security cases, “[t]he plaintiff must provide a statement 7 identifying the basis of the plaintiff's disagreement with the ALJ’s determination and must 8 make a showing that he is entitled to relief, ‘in sufficient detail such that the Court can 9 understand the legal and/or factual issues in dispute so that it can meaningfully screen the 10 complaint pursuant to § 1915(e).’” Jaime B. v. Saul, No. 19cv2431-JLB, 2020 WL 11 1169671, at *2 (S.D. Cal. Mar. 10, 2020) (quoting Graves v. Colvin, No. 15cv106-RFB- 12 NJK, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015)). “Every plaintiff appealing an 13 adverse decision of the Commissioner believes that the Commissioner was wrong. The 14 purpose of the complaint is to briefly and plainly allege facts supporting the legal 15 conclusion that the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, 16 at *2. 17 Having reviewed Plaintiff’s Complaint, the Court finds Plaintiff sufficiently has 18 stated a claim upon which relief may be granted. Specifically, Plaintiff appeals the 19 Commissioner’s denial of his benefits application on the grounds that: (1) “[t]he ALJ 20 rejected the opinions of Dr. Arevalo, the opinions which formed the basis of the prior 21 remand, without specific and legitimate reasons;” (2) “[t]he ALJ rejected the opinions of 22 subsequent treating psychiatrist Dr. Manuel without a statement of specific and legitimate 23 reasons;” (3) “[t]he ALJ gave great weight to the opinions of non-examining psychological 24 consultants that are stale o[r] have not reviewed the bulk of the treatment records;” and 25 (4) “[t]he ALJ relied on vocational expert testimony inconsistent with agency policy 26 construing the severe impairment and mental residual functional capacity regulations.” 27 ECF No. 1 at 2-3. The Court finds these allegations sufficiently specific to state a claim for 28 reversal or remand of the Commissioner’s decision. 1 Hl. CONCLUSION 2 Based on the foregoing considerations, the Court GRANTS Plaintiff's Motion to 3 Proceed IFP. ECF No. 3. In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. 4 ||§ 1915(d), the Court DIRECTS the Clerk to issue the summons and to send Plaintiff a 5 || blank United States Marshal Service (“USMS”) Form 285 along with certified copies of 6 || this Order and his Complaint (ECF No. 1). Once Plaintiff receives this “IFP Package,” the 7 || Court ORDERS him to complete the Form 285 and forward all documents in the package 8 the USMS. Upon receipt, the USMS will serve a copy of the Complaint and summons 9 ||on Defendant as directed by Plaintiff on the USMS Form 285. The United States will 10 || advance all costs of service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 11 IT IS SO ORDERED. 12 Dated: November 23, 2020 3 _Abiomt. Xl Honorable Allison H. Goddard 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28