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Sims v. The United States Social Security Administration

United States District Court, S.D. California

July 21, 2017

BETTY L. SIMS Plaintiff,
v.
THE UNITED STATES SOCIAL SECURITY ADMINISTRATION Defendants.

          ORDER (1) GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS [DOC. NO. 3]; AND (2) DISMISSING THE COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) [DOC. NO. 5]

          JOHN A. HOUSTON United States District Judge

         On October 14, 2016, Plaintiff Betty L. Sims, a non-prisoner proceeding pro se (“Plaintiff”), filed a claim against the United States Social Security Administration (“Defendant”) in the Superior Court of California, County of San Diego, Small Claims Division. See Doc. No. 2. On February 6, 2017, Plaintiff dismissed her small claim action without prejudice. Id. On February 14, 2017, Defendant, unaware that the underlying matter was dismissed, removed the action to this Court. See Doc. No. 1. Two days later, on February 16, 2017, Defendant learned that Plaintiff dismissed her case, and notified the Court of the same. See Doc. No. 2. On June 6, 2017, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915(a). See Doc. No. 3. On June 9, 2017, Plaintiff filed a document captioned “Amended Complaint, ” requesting only that the Court “preside over [this] case.” See Doc. No. 5 at 2. The Court construes this filing as Plaintiff's Complaint. On the same date, Plaintiff filed a document captioned “DOCUMENT TITLE (e.g. NOTICE OF MOTION AND MOTION FOR STRIKING PORTIONS OF COMPLAINT).” See Doc. No. 7. The Court construes this filing as a supplement to the Complaint. Id.

         After a careful review of the entire record, and for the reasons set forth below, the Court (1) GRANTS Plaintiff's motion for leave to proceed IFP, [doc. no 2]; (2) DISMISSES Plaintiff's entire Complaint, [doc. no. 7], without prejudice (and with leave to amend) for failure to state a cognizable claim upon which relief may be granted; and (3) GRANTS Plaintiff forty-five days leave to file an Amended Complaint which cures all the deficiencies described in this Order. 28 U.S.C. § 1367(c)(3); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

         I. Plaintiff's IFP Motion

         All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.[1] See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 492 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when plaintiffs submit an affidavit, including a statement of all of their assets, showing the inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a).

         In support of her IFP motion, Plaintiff has submitted an application to proceed in district court without paying fees or costs. See Doc. No. 3. Plaintiff's application indicates that she is currently unemployed, and has earned no job-related income during the past two years. Id. Additionally, Plaintiff receives no income from real property, investments, retirement accounts, gifts, alimony, or child support. Id. Plaintiff's sole source of income is a disability payment in the amount of $889.00. Id. Plaintiff's average monthly expenses are $805.00. Id. Plaintiff indicates that she owns two checking accounts: one with $0.00 balance, and the other with a $40.00 balance. Id. Plaintiff also owns stock worth $298.00. Id. Plaintiff anticipates changes in the next twelve months, if she loses her social security benefits. Id. Based on these representations, the Court finds Plaintiff has sufficiently shown that she is unable to pay the fees required to commence her lawsuit. Therefore, the Court GRANTS plaintiff's motion for leave to proceed IFP.

         II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)

         A. Standard of Review

         Plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. Accordingly, her Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that - (A) the allegation of poverty is untrue; or (B) the action or appeal - (i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.”)' Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires, a district court to dismiss an in forma pauperis complaint that fails to state a claim.”).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

         To survive a motion to dismiss, the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U, S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for relief [is]… a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also Moss. V. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in light most favorable to the plaintiff.”).

         However, while the court “has an obligation where the petitioner is pro se… to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, ” Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         B. ...


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