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Virgil v. Commissioner of Social Security

United States District Court, S.D. California

November 12, 2019

MYRA LYNN VIRGIL, Plaintiff,
v.
Commissioner of the Social Security Administration, Defendant.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; [ECF NO. 7]

          Hon. Nita L. Stormes United States Magistrate Judge.

         Before 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.

         I. Motion to Proceed In Forma Pauperis

         A 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).

         The 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.

         Having 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).

         Here, 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.

         II. Conclusion

         Accordingly, for the reasons as set forth above, the Court GRANTS Plaintiff's motion to proceed in forma pauperis and ORDERS as follows:

         1. The 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).

         2. 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 7.1(e)(6).

         3. 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.

         IT ...


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