1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID MEGRDITCHIAN, Case No.: 3:23-cv-01734-H-DEB

12 Plaintiff,

ORDER DENYING MOTION FOR

13 v. LEAVE TO PROCEED IN FORMA

PAUPERIS

14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security, 15 [Doc. No. 2.] Defendant. 16

17 18 On September 19, 2023, Plaintiff filed a complaint against Kilolo Kijakazi, the 19 Commissioner of Social Security, seeking judicial review of the Commissioner’s decision 20 denying Plaintiff’s application for Social Security Disability Insurance and Supplemental 21 Security Income. (Doc. No. 1.) That same day, Plaintiff filed a motion for leave to proceed 22 in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (Doc. No. 2.) For the reasons 23 below, the Court denies Plaintiff’s motion to proceed IFP. 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 the applicant has properly shown an inability to pay the 27 filing fee under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 28 Cir. 1999). To that end, each applicant seeking to proceed IFP must provide the Court a 1 signed affidavit including a statement of all of the applicant’s assets. S.D. Cal. Civ. 2 L.R. 3.2(a). Second, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate 3 whether the complaint sufficiently states a claim upon which relief may be granted before 4 the complaint is served. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 5 (“[S]ection 1915(e) not only permits but requires a district court to dismiss an in forma 6 pauperis complaint that fails to state a claim.”). 7 II. DISCUSSION 8 A. Motion to Proceed IFP 9 It is well settled that a party need not be completely destitute to proceed IFP. Adkins 10 v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To meet the requirements 11 of 28 U.S.C. § 1915(a), an affidavit should “allege[] that the affiant cannot pay the court 12 costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 13 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute, 14 regulation, or case law to determine when someone is poor enough to earn IFP status.” 15 Escobedo, 787 F.3d at 1235. 16 Consequently, courts must evaluate IFP requests on a case-by-case basis. See id. 17 at 1235–36 (declining to implement a general benchmark of “twenty percent of monthly 18 household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 19 1991) (requiring that district courts evaluate indigency based upon available facts and by 20 exercise of their “sound discretion”), rev’d on other grounds, 506 U.S. 194 (1993); Venable 21 v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974). An adequate affidavit should also state 22 supporting facts “with some particularity, definiteness and certainty,” United States v. 23 McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citing Jefferson v. United States, 277 F.2d 24 723, 725 (9th Cir. 1960)), so that the Court does not grant IFP to an applicant who is 25 “financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 26 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v. Berryhill, No. 18-cv-02133-W- 27 BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting that courts often reject IFP 28 applications when applicants “can pay the filing fee with acceptable sacrifice to other 1 expenses”). 2 Here, Plaintiff’s motion to proceed IFP contains a sworn statement consisting of his 3 income and assets. (Doc. No. 2.) According to his sworn statement, Plaintiff is currently 4 unemployed. (Id. at 2.) Plaintiff receives approximately $1,952.00 per month in social 5 security benefits and $20.00 per month in other income. (Id. at 2, 5.) Plaintiff’s assets 6 include $6,145.00 in checking and savings accounts, and a 1999 Chevrolet vehicle. (Id. 7 at 2–3.) Plaintiff states that his monthly expenses amount to approximately $1,584.00. (Id. 8 at 4–5.) Upon review of Plaintiff’s motion and sworn statement, Plaintiff has failed to 9 show that he has an insufficient combination of income and assets to pay the filing fees 10 associated with commencing this action. Accordingly, the Court denies Plaintiff’s motion 11 to proceed IFP. The Court will now review Plaintiff’s complaint pursuant to 28 U.S.C. 12 § 1915(e). 13 B. Screening Under 28 U.S.C. § 1915(e) 14 A complaint filed pursuant to 28 U.S.C. § 1915(a), is subject to a mandatory 15 screening by the Court. Lopez, 203 F.3d at 1127. The Court must dismiss the complaint 16 if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or 17 seeks monetary relief from a defendant immune from such relief. 28 U.S.C. 18 § 1915(e)(2)(B). Social security appeals are not exempt from this § 1915(e) screening 19 requirement. Hoagland v. Astrue, No. 12-cv-00973-SMS, 2012 WL 2521753, at *1 (E.D. 20 Cal. June 28, 2012); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per 21 curiam) (noting section 1915(e)(2)(B) is “not limited to prisoners”); Lopez, 203 F.3d 22 at 1129 (“section 1915(e) applies to all in forma pauperis complaints”). 23 To pass screening, all complaints must contain a “short and plain statement of the 24 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although 25 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a 26 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 27 Iqbal, 556 U.S. 662, 678 (2009). A complaint in a social security appeal is “not exempt 28 from the general rules of civil pleading.” Hoagland, 2012 WL 2521753, at *2. 1 Several courts within the Ninth Circuit have set forth the following basic 2 requirements for complaints to survive the Court’s § 1915(e) screening: 3 First, the plaintiff must establish that she has exhausted her administrative 4 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was 5 commenced within sixty days after notice of a final decision. Second, the complaint must indicate the judicial district in which the plaintiff resides. 6 Third, the complaint must state the nature of the plaintiff’s disability and when 7 the plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise statement identifying the nature of the plaintiff’s 8 disagreement with the determination made by the Social Security 9 Administration and show that the plaintiff is entitled to relief. 10 See, e.g., Montoya v. Colvin, No. 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. 11 Nev. Mar. 8, 2016) (collecting cases); Graves v. Colvin, No. 15-cv-00106-RFB-NJK, 2015 12 WL 357121, *2 (D. Nev. Jan. 26, 2015) (same). 13 As for the fourth requirement, “[e]very plaintiff appealing an adverse decision of the 14 Commissioner believes that the Commissioner was wrong.” Hoagland, 2012 WL 2521753, 15 at *3. Thus, a complaint merely stating that the Commissioner’s decision was wrong or 16 that “merely parrots the standards used in reversing or remanding a case” is insufficient to 17 satisfy a plaintiff’s pleading requirement. See, e.g., Cribbet v. Comm’r of Social Security, 18 No. 12-cv-01142-BAM, 2012 WL 5308044, *3 (E.D. Cal. Oct. 29, 2012); Graves, 2015 19 WL 357121, at *2. Instead, “[a] complaint appealing the Commissioner’s denial of 20 disability benefits must set forth a brief statement of facts setting forth the reasons why the 21 Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753, at *2. The plaintiff 22 must provide a statement identifying the basis of the plaintiff’s disagreement with the 23 Social Security Administration’s determination and must make a showing that he is entitled 24 to relief, “in sufficient detail such that the Court can understand the legal and/or factual 25 issues in dispute so that it can meaningfully screen the complaint pursuant to § 1915(e).” 26 Graves, 2015 WL 357121, at *2. 27 Here, Plaintiff alleges that the conclusions and findings of fact of the ALJ are not 28 supported by substantial evidence and are contrary to law and regulation. (Doc. No. 1 ¶ 7.) 1 || Specifically, Plaintiff alleges that while the administrative law judge (“ALJ”) found that 2 || Plaintiff had limitations in his ability to maintain regular attendance in the workplace and 3 || perform work activities on a consistent basis, the ALJ did not translate that finding to the 4 ||residual functional capacity assessment. (Id.) Further, Plaintiff alleges that the ALJ found 5 Plaintiff's testimony was “partially consistent,” yet the ALJ failed to explain which 6 of Plaintiff's testimony was rejected. (Id.) Accordingly, Plaintiff has included 7 || sufficient details in his complaint to satisfy the requirements of § 1915(e)(2)(B). 8 CONCLUSION 9 For the foregoing reasons, the Court denies Plaintiffs motion to proceed IFP. 10 || Plaintiff must pay the filing fees in full within thirty (30) days of the date of this order or 11 || this case will be dismissed. 12 IT IS SO ORDERED. _ 13 DATED: November 1, 2023 | JI fe 14 MARILYN FE. HUFF, Distri ge 15 UNITED STATES DISTRICT COURT 16 17 18 19 20 21 22 23 24 25 26 27 28