Black v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN BLACK, Case No.: 20cv772-NLS 12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 ANDREW SAUL, Commissioner of MOTION FOR LEAVE TO Social Security, 15 PROCEED IN FORMA PAUPERIS; Defendant. and 16 17 (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND 18 19 [ECF No. 2]

21 22 Before the Court is Plaintiff Kathleen Black’s complaint seeking judicial review of 23 the Social Security Administration’s decision and motion for leave to proceed in forma 24 pauperis (“IFP”). ECF Nos. 1-2. After due consideration and for the reasons set forth 25 below, the Court finds that Plaintiff meets the financial requirements for IFP but 26 DISMISSES Plaintiff’s complaint with leave to amend, if amended within 60 days of the 27 date of this order. 28 // 1 I. Motion to Proceed IFP 2 It is well-settled that a party need not be completely destitute to proceed IFP. 3 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). The 4 determination of indigency falls within the district court’s discretion. See Cal. Men’s 5 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (noting “Section 1915 typically 6 requires the reviewing court to exercise its sound discretion in determining whether the 7 affiant has satisfied the statute’s requirement of indigency”), rev’d on other grounds, 506 8 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where it 9 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 10 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 11 339). At the same time, however, “the same even-handed care must be employed to 12 assure that federal funds are not squandered to underwrite, at public expense . . . the 13 remonstrances of a suitor who is financially able, in whole or in material part, to pull his 14 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Finally, the facts 15 as to the litigant’s indigency must be stated “with some particularity, definiteness and 16 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 17 Here, Plaintiff submits an affidavit stating that he receives $1250.00 a month from 18 rental income, $169.00 a month from interest and dividends, and $180.00 a month from 19 food stamps, for a total of $1599.00 in total income. ECF No. 2 at 1-2. She claims a 20 checking account with a balance of $1000.00 and a car that is worth $7500.00. Id. at 2-3. 21 For monthly average expenses, she claims rent in the amount of $1000.00, utilities in the 22 amount of $165.00, food in the amount of $100.00, medical/dental expenses in the 23 amount of $100.00, transportation in the amount of $75.00, car insurance in the amount 24 of $120.00, cell phone plan in the amount of $15.00, and service animal costs in the 25 amount of $50.00, for a total of $1625.00 in expenses each month. Id. at 4-5. 26 With this financial information as background, the Court finds that Plaintiff has 27 sufficiently made the requisite showing that she lacks the financial resources to pay the 28 filing fees associated with commencing this lawsuit. Her monthly expenses slightly 1 outweigh her monthly income, and she does not have a sufficient surplus in savings to 2 cover the fee. 3 II. Screening under 28 U.S.C. § 1915(a) 4 A complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is subject 5 to a mandatory and sua sponte review by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 6 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails 7 to state a claim upon which relief may be granted, or seeks monetary relief from a 8 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Social security appeals 9 are not exempt from this § 1915(e) screening requirement. Hoagland v. Astrue, No. 10 1:12cv00973-SMS, 2012 WL 2521753, at *1 (E.D. Cal. June 28, 2012); see also Calhoun 11 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (noting section 1915(e)(2)(B) is 12 “not limited to prisoners”); Lopez, 203 F.3d at 1129 (“section 1915(e) applies to all in 13 forma pauperis complaints”). 14 To pass screening, all complaints must contain a “short and plain statement of the 15 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although 16 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a 17 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009). A complaint in a social security appeal is “not exempt 19 from the general rules of civil pleading.” Hoagland, 2012 WL 2521753, at *2. 20 Several courts within the Ninth Circuit have set forth the following basic 21 requirements for complaints to survive the Court’s § 1915(e) screening: 22 First, the plaintiff must establish that she has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was 23 commenced within sixty days after notice of a final decision. Second, the 24 complaint must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature of the plaintiff's disability and 25 when the plaintiff claims she became disabled. Fourth, the complaint must 26 contain a plain, short, and concise statement identifying the nature of the plaintiff's disagreement with the determination made by the Social Security 27 Administration and show that the plaintiff is entitled to relief. 28 1 See, e.g., Montoya v. Colvin, No. 16cv00454-RFB-NJK, 2016 WL 890922, at *2 (D. 2 Nev. Mar. 8, 2016) (collecting cases); Graves v. Colvin, No. 15cv106-RFB-NJK, 2015 3 WL 357121, *2 (D. Nev. Jan. 26, 2015) (same). 4 As for the fourth requirement, “[e]very plaintiff appealing an adverse decision of 5 the Commissioner believes that the Commissioner was wrong.” Hoagland, 2012 WL 6 2521753, at *3. Thus, a complaint merely stating that the Commissioner's decision was 7 wrong is plainly or that “merely parrots the standards used in reversing or remanding a 8 case” is insufficient to satisfy a plaintiff’s pleading requirement. See, e.g., Cribbet v. 9 Comm’r of Social Security, No. 12cv1142-BAM 2012 WL 5308044, *3 (E.D. Cal. Oct. 10 29, 2012); Graves, 2015 WL 357121, at *2. Instead, “[a] complaint appealing the 11 Commissioner’s denial of disability benefits must set forth a brief statement of facts 12 setting forth the reasons why the Commissioner’s decision was wrong.” Hoagland, 2012 13 WL 2521753, at *2; see also Harris v. Colvin, No. 14cv383-GW (RNB), 2014 WL 14 1095941, *4 (C.D. Cal. Mar. 17, 2014) (dismissing complaint which did not “specify . . . 15 the respects in which [the plaintiff] contends that the ALJ’s findings are not supported by 16 substantial evidence and/or that the proper legal standards were not applied”); Gutierrez 17 v. Astrue, No. 11cv454-GSA, 2011 WL 1087261, *2 (E.D. Cal. Mar. 23, 2011) 18 (dismissing complaint which did not “provide[] any substantive reasons” for appealing 19 the ALJ’s decision and did not “identif[y] any errors in [the] decision”). The plaintiff 20 must provide a statement identifying the basis of the plaintiff’s disagreement with 21 the Social Security Administration’s determination and must make a showing that she is 22 entitled to relief, “in sufficient detail such that the Court can understand the legal and/or 23 factual issues in dispute so that it can meaningfully screen the complaint pursuant to 24 § 1915(e).” Graves, 2015 WL 357121, at *2. 25 With these standards in mind, the Court turns to Plaintiff’s complaint. Plaintiff 26 states that the ALJ erred for the following reasons: (1) that “[t]here is no substantial 27 medical or vocational evidence in the record to support the legal conclusion [that] 28 plaintiff is not disabled;” (2) that “[t]here is no substantial evidence in the record to 1 support the Commissioner’s finding that plaintiff could perform any substantial gainful 2 || activity;” (3) that “[t]he evidence in the record only supports finding that plaintiff is 3 || disabled;” and 4) “[n]ew and material evidence for which good cause exists for failure to 4 submit earlier exists and warrants a remand.” ECF No. 1 at 2-3. This amounts to nothing 5 ||more than “merely parrot[ing] the standards used in reversing or remanding a case” and is 6 insufficient to satisfy a plaintiff's pleading requirement. See Cribbet, 2012 WL 5308044, 7 Graves, 2015 WL 357121, at *2. There is no specific reason given about what 8 || specific evidence is being contested in this case, nor is there any identification of what 9 ““new and material” evidence now exists. Simply stating that no substantial evidence 10 || exists is not sufficient. See Harris, 2014 WL 1095941, *4 (dismissing complaint which 11 || did not “specify .. . the respects in which [the plaintiff] contends that the ALJ’s findings 12 || are not supported by substantial evidence and/or that the proper legal standards were not 13 applied”). Accordingly, the Court finds that Plaintiff's complaint fails to state a claim for 14 relief and DISMISSES the complaint with leave to amend. Plaintiff may correct the 15 || deficiencies in her complaint to comply with the requirements as set forth above, and file 16 ||an amended complaint within 60 days of this order. 17 IT IS SO ORDERED. 18 || Dated: April 30, 2020 19 Mie. Lo mm 0 Hon. Nita L. Stormes United States Magistrate Judge 22 23 24 25 26 27 28