Frith v. Kijakazi

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 Gabriel F., Case No.: 3:20-cv-02213-AHG

12 Plaintiff, ORDER:

13 v.

(1) GRANTING PLAINTIFF’S

14 ANDREW SAUL, Commissioner of MOTION FOR LEAVE TO

Social Security, PROCEED IN FORMA PAUPERIS,

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Defendant.

16 (2) DENYING PLAINTIFF’S

MOTION FOR APPOINTMENT OF

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COUNSEL, and

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(3) DENYING PLAINTIFF’S

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MOTION TO AWARD BENEFITS

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[ECF Nos. 2, 3, 4]

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Before the Court are three motions filed by Plaintiff Gabriel F. (“Plaintiff”):

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1. Motion for Leave to Proceed in forma pauperis (“IFP”) under 28 U.S.C.

24 § 1915 (ECF No. 2),

2. Motion for Appointment of Counsel (ECF No. 3), and

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3. Motion for Disability Benefits (ECF No. 4).

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The Court will address each motion in turn.

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1 I. MOTION FOR LEAVE TO PROCEED IFP (ECF No. 2)

2 On November 13, 2020, Plaintiff brought this action against the Commissioner of

3 Social Security, Andrew Saul, seeking judicial review of the Commissioner’s final

4 administrative decision denying his application for Social Security Supplemental Security

5 Income Disability Benefits for lack of disability. ECF No. 1. Along with his Complaint,

6 Plaintiff also filed a Motion for Leave to Proceed IFP under 28 U.S.C. § 1915. ECF No. 2.

7 A. Legal Standard

8 A motion to proceed IFP presents two issues for the Court’s consideration. First, the

9 Court must determine whether an applicant properly shows an inability to pay the $400

10 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that end, an

11 applicant must also provide the Court with a signed affidavit “that includes a statement of

12 all assets[,] which shows inability to pay initial fees or give security.” CivLR 3.2(a).

13 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint

14 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d

15 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to

16 dismiss an in forma pauperis complaint that fails to state a claim.”).

17 B. Proceeding IFP

18 An applicant need not be completely destitute to proceed IFP, but he must adequately

19 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40

20 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs

21 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

22 Cir. 2015) (citing Adkins, 335 U.S. at 339). No exact formula is “set forth by statute,

23 regulation, or case law to determine when someone is poor enough to earn IFP status.”

24 Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on a case-

25 by-case basis. See id. at 1235–36 (declining to implement a general benchmark of “twenty

26 percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 939 F.2d

27 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based upon

28 available facts and by exercise of their “sound discretion”), rev’d on other grounds, 506

1 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974).

2 An adequate affidavit should also state supporting facts “with some particularity,

3 definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)

4 (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). The Court should not

5 grant IFP to an applicant who is “financially able, in whole or in material part, to pull his

6 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984); see also Alvarez v.

7 Berryhill, No. 18cv2133-W-BGS, 2018 WL 6265021, at *1 (S.D. Cal. Oct. 1, 2018) (noting

8 that courts often reject IFP applications when applicants “can pay the filing fee with

9 acceptable sacrifice to other expenses”). Additionally, courts have discretion to make a

10 factual inquiry and to deny a motion to proceed IFP when the moving party is “unable, or

11 unwilling, to verify their poverty.” McQuade, 647 F.2d at 940.

12 Here, Plaintiff states in his affidavit that he receives only $689.00 per month in

13 income each month, providing in-home care for his mother. ECF No. 2 at 1, 5. His affidavit

14 illustrates that his $693.00 in monthly expenses for utilities, groceries, clothing,

15 transportation, car insurance, and alimony or support paid to others, exceeds his expected

16 monthly income. Id. at 4–5. He has no other source of income or valuable assets, other than

17 his vehicle. Id. 2–3. Considering the information in the affidavit, the Court finds that

18 Plaintiff has sufficiently shown an inability to pay the $400 filing fee under § 1915(a).

19 C. Screening under 28 U.S.C. 1915(e)

20 As discussed above, every complaint filed pursuant to the IFP provisions of 28

21 U.S.C. § 1915 is subject to a mandatory screening by the Court under Section

22 1915(e)(2)(B). Lopez, 203 F.3d at 1127. Under that subprovision, the Court must dismiss

23 complaints that are frivolous or malicious, fail to state a claim on which relief may be

24 granted, or seek monetary relief from defendants who are immune from such relief. See 28

25 U.S.C. § 1915(e)(2)(B). Social Security appeals are not exempt from this screening

26 requirement. See Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *1

27 (E.D. Cal. June 28, 2012) (“Screening is required even if the plaintiff pursues an appeal of

28 right, such as an appeal of the Commissioner's denial of social security disability benefits

1 [under 42 U.S.C. 405(g)].”); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

2 (affirming that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”);

3 Lopez, 203 F.3d at 1129.

4 Rule 8 sets forth the federal pleading standard used to determine whether a complaint

5 states a claim upon which relief may be granted. FED. R. CIV. P. 8; see also Ashcroft v.

6 Iqbal, 556 U.S. 662, 678–79 (2009) (“[A] complaint must contain a “short and plain

7 statement of the claim showing that the pleader is entitled to relief.”); Bell Atlantic Corp.

8 v. Twombly, 550 U.S. 544, 555 (2007) (noting that “detailed factual allegations” are not

9 required, but a plaintiff must provide “more than labels and conclusions, and a formulaic

10 recitation of the elements of a cause of action” to justify relief). A proper pleading “does

11 not require detailed factual allegations, but it demands more than an unadorned, the-

12 defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions

13 . . . will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further

14 factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted)

15 (referring to FED. R. CIV. P. 8).

16 For example, in social security cases, “[t]he plaintiff must provide a statement

17 identifying the basis of the plaintiff's disagreement with the ALJ’s determination and must

18 make a showing that he is entitled to relief, ‘in sufficient detail such that the Court can

19 understand the legal and/or factual issues in dispute so that it can meaningfully screen the

20 complaint pursuant to § 1915(e).’” Jaime B. v. Saul, No. 19cv2431-JLB, 2020 WL

21 1169671, at *2 (S.D. Cal. Mar. 10, 2020) (quoting Graves v. Colvin, No. 15cv106-RFB-

22 NJK, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015)). “Every plaintiff appealing an

23 adverse decision of the Commissioner believes that the Commissioner was wrong. The

24 purpose of the complaint is to briefly and plainly allege facts supporting the legal

25 conclusion that the Commissioner’s decision was wrong.” Hoagland, 2012 WL 2521753,

26 at *2.

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1 Having reviewed Plaintiff’s Complaint, the Court finds Plaintiff has sufficiently

2 stated a claim upon which relief may be granted. Specifically, Plaintiff appeals the

3 Commissioner’s denial of his benefits application on the grounds that: (1) the ALJ abused

4 his discretion in denying Plaintiff’s application for benefits; (2) the ALJ determined

5 Plaintiff’s residual functional capacity in a way that was not consistent with Plaintiff’s

6 demonstrated capacity; (3) there were inconsistencies in Plaintiff’s qualifying dates; and

7 (4) the ALJ denied Plaintiff’s application because he incorrectly gave greater weight to an

8 opinion of a state agency psychologist who spent 15 minutes evaluating Plaintiff and did

9 not administer a psychometric standardized test. ECF No. 1 at 4, 8; ECF No. 1-5 at 5. The

10 Court finds these allegations sufficiently specific to state a claim for reversal or remand of

11 the Commissioner’s decision.

12 D. Summary

13 Based on the foregoing considerations, the Court GRANTS the Plaintiff’s Motion

14 to Proceed IFP (ECF No. 2).

15 In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court

16 DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States

17 Marshal Service (“USMS”) Form 285 along with certified copies of this Order and his

18 Complaint (ECF Nos. 1, 1-1, 1-2, 1-3, 1-4, 1-5). Once Plaintiff receives this “IFP Package,”

19 the Court ORDERS him to complete the Form 285 and forward all documents in the

20 package to the USMS. Upon receipt, the USMS will serve a copy of the Amended

21 Complaint and summons on Defendant as directed by Plaintiff on the USMS Form 285.

22 The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIV.

23 P. 4(c)(3)

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26 II. MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 3)

27 Along with his complaint, Plaintiff also filed a motion for appointment of counsel.

28 ECF No. 3. Plaintiff notes that he applied to proceed IFP and has been unable to secure

1 counsel. Id. at 2–3.

2 A. Legal Standard

3 There is no constitutional right to appointment of counsel in a civil case, unless an

4 indigent litigant’s physical liberty is at stake. Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18,

5 25 (1981); see, e.g., United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996)

6 (collecting cases to show that it is “well-established that there is generally no constitutional

7 right to counsel in civil cases”). Nevertheless, courts have discretion to request legal

8 representation for “any person unable to afford counsel.” See 28 U.S.C. § 1915(e)(1); see

9 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Courts have required that

10 plaintiffs demonstrate they are indigent and that they have made a reasonably diligent effort

11 to secure counsel before they are eligible for an appointed attorney. Bailey v. Lawford, 835

12 F. Supp. 550, 552 (S.D. Cal. 1993) (extending the “reasonably diligent effort” standard

13 used in Bradshaw v. Zoological Soc’y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981)

14 to requests made pursuant to 28 U.S.C. § 1915); see, e.g., Verble v. United States, No.

15 07cv0472 BEN-BLM, 2008 WL 2156327, at *2 (S.D. Cal. May 22, 2008).

16 But even after a plaintiff satisfies the two initial requirements of indigence and a

17 diligent attempt to obtain counsel, “he is entitled to appointment of counsel only if he can

18 [also] show exceptional circumstances.” Bailey, 835 F. Supp. at 552 (citing Wilborn v.

19 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Finding exceptional circumstances

20 entails “an evaluation of both the ‘likelihood of success on the merits and the ability of the

21 plaintiff to articulate his claims pro se in light of the complexity of the legal issues

22 involved.’ Neither of these issues is dispositive and both must be viewed together before

23 reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331); see

24 also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

25 B. Discussion

26 First, the Court examines the threshold requirements that Plaintiff is indigent and

27 has made a reasonably diligent effort to secure counsel. Here, the Court acknowledged

28 Plaintiff’s indigence when it granted Plaintiff’s motion to proceed in forma pauperis.

1 Additionally, Plaintiff has made two attempts to secure counsel. He has contacted the one

2 attorney in Colton, California, who declined to represent him. ECF No. 3 at 3. Plaintiff also

3 used an internet attorney referral service, but no attorneys responded. Id. Court must

4 therefore determine whether Plaintiff can show exceptional circumstances justifying court-

5 appointed counsel by examining the likelihood of Plaintiff succeeding on the merits and

6 his ability to proceed without counsel. Wilborn, 789 F.2d at 1331; Bailey, 835 F. Supp.

7 at 552.

8 1. Likelihood of Success on the Merits

9 “A plaintiff that provides no evidence of his likelihood for success at trial fails to

10 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No.

11 14cv2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, Plaintiff

12 has not offered evidence in his motion suggesting that he is likely to succeed on the merits.

13 Bailey, 835 F. Supp. at 552 (concluding likelihood of success not shown where the plaintiff

14 did not present any evidence other than his own assertions to support his claims).

15 Additionally, there is little before the Court regarding the merits of Plaintiff’s case, other

16 than assertions in his complaint.2 ECF No. 1. Thus, at this early stage of the case, the Court

17 cannot find that Plaintiff is likely to succeed on the merits. See, e.g., Bailey, 835 F. Supp.

18 at 552 (denying motion for appointment of counsel when plaintiff requested counsel two

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1 The Court questions whether Plaintiff’s two attempts on one day constitute a “reasonably

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diligent effort.” Compare ECF No. 3 at 3 with Raya v. Barka, No. 19cv2295-WQH-AHG,

22 2020 WL 5877848, at *2 (S.D. Cal. Oct. 2, 2020) (stating that Plaintiff made a reasonably

diligent effort to secure counsel when he “contacted the Community Law Project, and has

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also called and emailed at least four attorneys in San Diego, four attorneys in Los Angeles,

24 one attorney in Pasadena, and one attorney in San Francisco”).

25 2 That Plaintiff’s complaint survived the Court’s IFP screening process does not

demonstrate that Plaintiff is likely to succeed at trial. McGinnis v. Ramos, No. 15cv2812-

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JLS-JLB, 2017 U.S. Dist. LEXIS 58507, at *6–*7 (S.D. Cal. Apr. 17, 2017) (stating that

27 the Court’s screening process under § 1915 “determin[es] whether a plaintiff stated a

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plausible claim . . . not whether a plaintiff will ultimately prevail on his alleged claim”).

1 months after filing complaint, because plaintiff did not offer any evidence in the motion,

2 and because it was too early to determine whether any of plaintiff’s claims would succeed

3 on the merits). Therefore, Plaintiff fails to satisfy the first “exceptional circumstances”

4 factor that would support his motion for appointment of counsel.

5 2. Ability to Articulate Claims Pro Se

6 In his motion, Plaintiff does not cite any barriers to successfully articulating his

7 claims. As. such, Plaintiff fails to demonstrate an inability to represent himself beyond the

8 ordinary burdens encountered by others representing themselves pro se.

9 The Court does not doubt that Plaintiff, like most pro se litigants, finds it difficult to

10 articulate his claims and would be better served with the assistance of counsel. It is for this

11 reason that in the absence of counsel, federal courts employ procedures that are highly

12 protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

13 (holding that the pleadings of a pro se litigant must be held to less stringent standards than

14 formal pleadings drafted by lawyers). Thus, as long as a pro se litigant is able to articulate

15 his claim, as Plaintiff is here, the second “exceptional circumstances” factor that might

16 support the appointment of counsel is not met.

17 C. Summary

18 Although Plaintiff is indigent and made several efforts to obtain counsel, Plaintiff

19 failed to show that exceptional circumstances require appointment of counsel. See

20 Escobedo v. Berryhill, No. 19cv869-LAB-NLS, 2019 U.S. Dist. LEXIS 124475, at *5

21 (S.D. Cal. July 25, 2019) (denying motion for appointment of counsel when plaintiff “has

22 not set forth any argument as to how her case meets the exceptional circumstances

23 requirement. She has not put forth any argument or evidence to substantiate a likelihood of

24 success on the merits of her claim, nor has she explained how the complexity of her case

25 renders her incapable of articulating her own claims”). Thus, the Court DENIES Plaintiff’s

26 Motion for Appointment of Counsel (ECF No. 3) without prejudice.

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1 III. MOTION FOR DISABILITY BENEFITS (ECF No. 4)

2 Along with his complaint, Plaintiff also filed a motion to award Plaintiff disability

3 insurance benefits. ECF No. 4. Aside from the cover page, the motion is identical to a

4 portion of Plaintiff’s complaint. Compare ECF No. 4-1 (instant motion) with ECF No. 1-5

5 (memorandum attached to complaint). Thus, the Court DENIES Plaintiff’s motion as

6 duplicative and premature.

7 The Court notes that Plaintiff will have an opportunity to submit a merits brief in

8 support of his position in this case. After the complaint is served and Defendant answers

9 by filing the administrative record, the Court will issue a briefing schedule with instructions

10 and deadlines for the filing of Plaintiff’s merits brief, Defendant’s opposition brief, and

11 Plaintiff’s reply brief.

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14 IV. CONCLUSION

15 For the reasons set forth above, the Court orders the following:

16 1. Plaintiff’s Motion for Leave to Proceed IFP (ECF No. 2) is

17 GRANTED;

18 2. In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court

19 DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States

20 Marshal Service (“USMS”) Form 285 along with certified copies of this Order and his

21 Complaint (ECF Nos. 1, 1-1, 1-2, 1-3, 1-4, 1-5). Once Plaintiff receives this “IFP Package,”

22 the Court ORDERS him to complete the Form 285 and forward all documents in the

23 package to the USMS. Upon receipt, the USMS will serve a copy of the Amended

24 Complaint and summons on Defendant as directed by Plaintiff on the USMS Form 285.

25 The United States will advance all costs of service. See 28 U.S.C. § 1915(d); FED. R. CIV.

26 P. 4(c)(3)

27 3. Plaintiff’s Motion for Appointment of Counsel (ECF No. 3) is

28 DENIED without prejudice; and

1 4. Plaintiff's Motion for Disability Benefits (ECF No. 4) is DENIED as

2 duplicative.

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4 IT IS SO ORDERED.

5 Dated: November 30, 2020

6 _ Anwar H. Xivolan HH.

Honorable Allison H. Goddard

7 United States Magistrate Judge

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