Sterling v. Kijakazi

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 GARRETT S., Case No. 22-cv-2006-MMA (WVG)

9 Petitioner, ORDER GRANTING PETITIONER’S 10 v. MOTION TO PROCEED IN FORMA PAUPERIS AND SCREENING 11 KILOLO KIJAKAZI, in her official COMPLAINT PURSUANT TO 28 capacity as the Commissioner of the 12 U.S.C. § 1915(a) Social Security Administration, 13 Respondent. [Doc. No. 2] 14 15 16 17 18 19 20 On December 16, 2022, Petitioner Garrett S. (“Petitioner”), proceeding through 21 counsel, filed this mandamus action pursuant to 28 U.S.C. § 1361 and California Code of 22 Civil Procedure § 1085(a), challenging the delay in processing his hearing request related 23 to the denial of his application for supplemental security income and social security 24 disability insurance. Doc. No. 1 (“Petition”). Petitioner simultaneously filed the instant 25 motion to proceed in forma pauperis (“IFP”). Doc. No. 2. 26 I. DISCUSSION 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s or 2 petitioner’s failure to prepay the entire fee only if he is granted leave to proceed in forma 3 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 4 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 Although the statute does not specify the qualifications for proceeding IFP, the 6 petitioner’s affidavit must allege poverty with some particularity. Escobeda v. 7 Applebees, 787 F.3d 1226, 1234 (2015). Granting a petitioner leave to proceed IFP may 8 be proper, for example, when the affidavit demonstrates that paying court costs will result 9 in an inability to afford the “necessities of life.” Id. The affidavit, however, need not 10 demonstrate that the petitioner is destitute. Id. 11 Here, Petitioner’s affidavit states that he has a special needs trust fund. See Doc. 12 No. 2 at 2, 5. However, Petitioner’s affidavit also shows that his average monthly 13 income amount during the past twelve months is $120.00 per month. Id. at 1–2. 14 Petitioner has $429.00 in his checking account and $524.00 in his savings account. Id. at 15 2. Petitioner does not own a home or motor vehicle. Id. at 3. Petitioner’s expenses total 16 $2985.00 per month, including $960.00 per month in rent and $400.00 per month in 17 medical and dental expenses. Id. at 4–5. 18 The Court concludes that Petitioner adequately has demonstrated that paying the 19 $400 filing fee would result in his inability to afford the necessities of life. Accordingly, 20 the Court GRANTS Petitioner’s IFP Motion. 21 Notwithstanding IFP status, the Court must subject each civil action commenced 22 pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte 23 dismissal of any case it finds “frivolous or malicious,” “fails to state a claim on which 24 relief may be granted,” or “seeks monetary relief against a defendant who is immune 25 from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 26 845 (9th Cir. 2001) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)) 27 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 28 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (citing Barren, 152 F.3d at 1 || 1194) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua 2 || sponte dismiss an IFP complaint that fails to state a claim). 3 Petitioner’s allegations with respect to his request for mandamus relief are 4 || sufficient for the purposes of sua sponte screening under § 1915(e)(2)(B). The Court’s 5 || sua sponte examination of Petitioner’s mandamus claim on screening under section 6 || 1915(e)(2) does not prevent the bringing of any motion authorized under Rule 12 of the 7 Federal Rules of Civil Procedure. Cf Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 8 |{(S.D. Cal. 2007). 9 Based on the foregoing, the Court hereby ORDERS as follows: 10 1. The United States Marshall shall serve a copy of the Petition filed on 11 ||December 16, 2022, see Doc. No. 1, and an accompanying summons upon Defendant as 12 || directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced 13 || by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 14 2. Respondent shall reply to the Petition within the time provided by the 15 || applicable provisions of Federal Rule of Civil Procedure 12(a). 16 3. Petitioner shall serve upon Respondent or, if appearance has been entered by 17 || counsel, upon Respondent’s counsel, a copy of every further pleading or other document 18 |/submitted for consideration of the Court. Petitioner shall include with the original paper 19 || to be filed with the Clerk of the Court a certificate stating the manner in which a true and 20 || correct copy of any document was served on the Respondent or Respondent’s counsel 21 the date of service. Any paper received by a district judge or magistrate judge which 22 || has not been filed with the Clerk or which fails to include a Certificate of Service may be 23 || disregarded. 24 IT IS SO ORDERED. 25 ||Dated: March 10, 2023 Mikal lM -(liphlr 27 HON. MICHAEL M. ANELLO 28 United States District Judge