United States District Court, S.D. California
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS; [ECF NO. 7]
Nita L. Stormes United States Magistrate Judge.
the Court is Plaintiff Myra Lynn Virgil's amended
complaint seeking judicial review of the Social Security
Administration's decision and accompanying motion for
leave to proceed in forma pauperis
(“IFP”). ECF Nos. 6-7. After due consideration
and for the reasons set forth below, the Court
GRANTS the motion to proceed IFP.
Motion to Proceed In Forma Pauperis
complaint filed pursuant to the IFP provisions of 28 U.S.C.
§ 1915(a), is subject to a mandatory and sua
sponte review by the Court. Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000). The Court must dismiss the
complaint if it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). “A complaint appealing the
Commissioner's denial of disability benefits must set
forth a brief statement of facts setting forth the reasons
why the Commissioner's decision was wrong.”
Hoagland v. Astrue, No. 1:12cv00973-SMS, 2012 WL
2521753, at *1 (E.D. Cal. June 28, 2012).
Court previously dismissed Plaintiff's first complaint
for failing to meet these pleading requirements. See
ECF Nos. 1, 5. Plaintiff's amended complaint provides
more information, specifically that she complains that the
ALJ failed to find her headaches and depression to be severe
impairments and erred by adopting the opinion of the
consultative examiner, which conflicted with other opinions
in the record and his own narrative. ECF No. 6 at ¶ 7.
The Court finds that the amended complaint, on its face,
appears to include a brief statement about why the
commissioner was wrong.
found that Plaintiff's complaint survives screening, the
Court turns to her ability to proceed without payment of the
required fees. It is well-settled that a party need not be
completely destitute to proceed IFP. Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). The determination of indigency falls within the
district court's discretion. See Cal. Men's
Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991)
(noting “Section 1915 typically requires the reviewing
court to exercise its sound discretion in determining whether
the affiant has satisfied the statute's requirement of
indigency”), rev'd on other grounds, 506
U.S. 194 (1993). “An affidavit in support of an IFP
application is sufficient where it alleges that the affiant
cannot pay the court costs and still afford the necessities
of life.” Escobedo v. Applebees, 787 F.3d
1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S.
at 339). At the same time, however, “the same
even-handed care must be employed to assure that federal
funds are not squandered to underwrite, at public expense . .
. the remonstrances of a suitor who is financially able, in
whole or in material part, to pull his own oar.”
Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I.
1984). Finally, the facts as to the litigant's indigency
must be stated “with some particularity, definiteness
and certainty.” United States v. McQuade, 647
F.2d 938, 940 (9th Cir. 1981).
Plaintiff states that she does not have a job and has not had
any income of her own for the last year. ECF No. 7 at 1. She
states that her only source of income comes from public
assistance and food stamps in the amount of $644 per month.
Id. at 2. The only asset she claims is a 2008 Toyota
Yaris, with a value of $1750. Id. at 3. She claims
that her rent, utilities, food, and other expenses total $643
per month. Id. at 4-5. Upon review of
Plaintiff's IFP application, the Court finds that
Plaintiff has sufficiently shown that she is unable to pay
the fees associated with commencing this lawsuit. Therefore,
the Court GRANTS Plaintiff's motion to
proceed in forma pauperis.
for the reasons as set forth above, the Court
GRANTS Plaintiff's motion to proceed
in forma pauperis and ORDERS as
Clerk shall issue a summons as to Plaintiff's Amended
Complaint (ECF No. 6) upon Defendant and shall forward it to
Plaintiff along with a blank U.S. Marshal Form 285. In
addition, the Clerk shall provide Plaintiff with a certified
copy of this Order and a certified copy of her Complaint and
the summons. Upon receipt of this “IFP Package, ”
Plaintiff is directed to complete the Form 285 as completely
and accurately as possible, and to return it to the U.S.
Marshal according to the instructions provided by the Clerk
in the letter accompanying her IFP package. Upon receipt, the
U.S. Marshal shall serve a copy of the complaint and summons
upon Defendant as directed by Plaintiff on the form. All
costs of service shall be advanced by the United States. See
28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3).
Defendant shall reply to the complaint within the time
provided by the applicable provisions of Federal Rule of
Civil Procedure 12(a) and consistent with Civil Local Rule
Plaintiff shall serve upon Defendant or, if appearance has
been entered by counsel, upon Defendant's counsel, a copy
of every further pleading or other document submitted for
consideration of the Court. Plaintiff shall include with the
original paper to be filed with the Clerk of the Court a
certificate stating the manner in which a true and correct
copy of any document was served on the Defendant or counsel
of Defendant and the date of service.