Zimmerman v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COREY WAYNE ZIMMERMAN, Case No.: 19cv1318-LL 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS, AND DISMISSING PLAINTIFF’S 14 ANDREW SAUL, FIRST AMENDED COMPLAINT 15 Defendant. WITHOUT PREJUDICE 16 [ECF No. 3] 17 18 Currently before the Court is Plaintiff’s second motion for leave to proceed in forma 19 pauperis [ECF No. 8] and Plaintiff’s First Amended Complaint [ECF No. 7]. For the 20 reasons set forth below, the Court GRANTS Plaintiff’s second motion for IFP status and 21 DISMISSES Plaintiff’s First Amended Complaint WITHOUT PREJUDICE. 22 I. MOTION TO PROCEED IFP 23 In Plaintiff’s second motion for IFP status, Plaintiff clarifies he makes between 24 $100-$660 a month driving for UBER. ECF No. 8 at 1-2. Plaintiff further clarifies his 25 family (including his spouse and one dependent child) have monthly expenses totaling 26 $3,976.00, which exceeds his family’s monthly income (Plaintiff’s spouse earns on average 27 $3000 a month in addition to the $100-$600 Plaintiff earns). Id. at 2, 4-5. 28 1 In addition, Plaintiff states that he and his family have nothing saved and have been 2 unable to make payments on their credit cards and other miscellaneous bills for the last six 3 months in order to afford basic necessities. Id. at 3, 5. Based on the foregoing, the Court 4 concludes Plaintiff has sufficiently demonstrated paying the filing fee in this case would 5 impair his ability to obtain the necessities of life. For these reasons, the Court GRANTS 6 Plaintiff’s second motion for IFP status. 7 II. INITIAL SCREENING 8 Plaintiff’s First Amended Complaint is almost identical to his original Complaint 9 and contains many of the same deficiencies. See ECF Nos. 1 and 7. For example, although 10 Plaintiff’s First Amended Complaint now provides the date Plaintiff alleges his disability 11 commenced, the First Amended Complaint still fails to state the nature of Plaintiff’s 12 disability with any specificity. ECF No. 7 at 2. 13 Further, in detailing the nature of Plaintiff’s disagreement with the Social Security 14 Administration, Plaintiff First Amended Complaint now alleges that “[i]n specific, the 15 ALJ’s decision lacks the support of substantial evidence because [the ALJ’s decision] 16 impermissibly rejected [Plaintiff’s] subjective symptoms.” ECF No. 7 at 3. 17 Here, Plaintiff’s single “specific” conclusory allegation is insufficient to show 18 Plaintiff is entitled to relief. “Every plaintiff appealing an adverse decision of the 19 Commissioner believes that the Commissioner was wrong.” Schwei v. Colvin, No. 2:15- 20 cv-01086-JCM-NJK, 2015 U.S. Dist. LEXIS 75100, at *4 (D. Nev. June 9, 2015) 21 (citations omitted). “Similarly, a social security complaint that merely parrots the 22 standards used in reversing or remanding a case is not sufficient to withstand 23 a screening pursuant to Section 1915(e).” Graves v. Colvin, No. 2:15-cv-00106-RFB- 24 NJK, 2015 U.S. Dist. LEXIS 9879, at *5 (D. Nev. Jan. 26, 2015). In this case, Plaintiff’s 25 allegation is devoid of any facts showing how the ALJ’s “impermissibly rejected” 26 Plaintiff’s subjective symptoms and why this was in error. 27 For these reasons, the Court DENIES WITHOUT PREJUDICE Plaintiff’s First 28 Amended Complaint for failure to state a claim. CONCLUSION 2 In light of the foregoing, Plaintiff □□ granted until September 9, 2019 to file a Second 3 || Amended Complaint. If Plaintiff fails to file a Second Amended Complaint within the time 4 permitted, or if the Second Amended Complaint again fails to address the defects identified > || in the current Order and Court’s prior August 13, 2019 Order, the Court may enter a final 6 || order dismissing the action with prejudice. IT IS SO ORDERED. 8 9 Dated: August 28, 2019 NO 10 Ce | 11 Honorable Linda Lopez 1D United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28