# Altamirano v. Kijakazi

> District Court, S.D. California · April 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10087480

## Case

- **Court:** District Court, S.D. California
- **Decided:** April 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 23cv601-BLM
11 MICHAEL DAVID ALTAMIRANO,

12 Plaintiff, ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
13 v. DISTRICT COURT WITHOUT
PREPAYING OF FEES OR COSTS
14 KILOLO KIJAKAZI, Acting Commissioner of

Social Security,
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Defendant. [ECF No. 2]
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18 The instant matter was initiated on April 4, 2023, when Plaintiff filed a complaint seeking
19 review of the Commissioner’s decision to deny Plaintiff’s “application for Social Security Disability
20 Insurance benefits for lack of disability.” ECF No. 1 at 1. That same day, Plaintiff filed an
21 Application to Proceed In District Court Without Prepaying Fees or Costs. ECF No. 2. On April
22 6, 2023, the Court denied Plaintiff’s motion without prejudice and dismissed Plaintiff’s complaint
23 with leave to amend because Plaintiff’s complaint failed to state a claim for relief. ECF No. 4.
24 On April 7, 2023, Plaintiff filed an amended complaint. ECF No. 5.
25 Having reviewed Plaintiff’s amended complaint and motion, the Court GRANTS Plaintiff’s
26 motion to proceed in district court without prepaying fees or costs and finds that Plaintiff’s
27 amended complaint is sufficient to survive screening.
1 Application to Proceed in District Court without Prepaying Fees or Costs
2 All parties instituting any civil action, suit, or proceeding in a district court of the United
3 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C.
4 § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he
5 is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states:
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[A]ny court of the United States may authorize the commencement, prosecution
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or defense of any suit, action or proceeding ... without prepayment of fees or
8 security therefor, by a person who submits an affidavit that includes a statement
9 of all assets such [person] possesses that the person is unable to pay such fees or
give security therefor.
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11 The determination of indigency falls within the district court's discretion. California Men's
12 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S.
13 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion
14 in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is
15 well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont
16 de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C.
17 § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his
18 poverty pay or give security for costs ... and still be able to provide for himself and dependents
19 with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must
20 be employed to assure that federal funds are not squandered to underwrite, at public expense,
21 ... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his
22 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). District courts tend to
23 reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to
24 other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff
25 initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement
26 proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because
27 the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee).
1 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
2 Plaintiff has satisfied his burden of demonstrating that he is entitled to IFP status.
3 According to his affidavit in support of his application, Plaintiff is not employed, has no income,
4 and receives $109.75 per month in food stamps and $3,500.00 per school semester through his
5 Pell Grant disbursement.1 Id. Plaintiff has $800.00 in a checking account and $300 in a savings
6 account. Id. Plaintiff owns a home worth $700,000.00 but notes that his aunt lives in the home
7 and pays the mortgage. Id. at 3. Plaintiff does not own any other assets. Id. Plaintiff’s monthly
8 expenses approximately include $109.25 for food, $50.00 for clothes, $40.00 for laundry and
9 dry cleaning, $100.00 for transportation, $50.00 for recreation and entertainment, $35.00 for
10 his credit card payment, and $100.00 for school expenses, for a total of $484.25 in monthly
11 expenses. Id. at 4-5. Plaintiff does not expect any major changes to his monthly income,
12 expenses, assets, or liabilities over the next twelve months. Id. at 5. Plaintiff states that he
13 “received a Pell grant for school of $3,500.00 in January” and “will receive another payment in
14 August. The monthly for [eight] months of the pell grant [sic] is $437.50/month[,]” which he
15 “use[s] [] for school expenses.” Id. at 5. Based on the foregoing, the Court finds that Plaintiff
16 has established that he is unable to pay the $402 filing fee without impairing his ability to pay
17 for life’s necessities. See Adkins, 335 U.S. at 339-40. Accordingly, the Court GRANTS Plaintiff’s
18 Application to Proceed in District Court without Prepaying Fees or Costs.
19 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a)
20 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are
21 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122,
22 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar.
23 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2)
24 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a
25 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at
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1 Plaintiff indicates that he receives two $3,500.00 Pell Grant disbursements per year, which
1 1126–27.
2 To survive, all complaints must contain “a short and plain statement of the claim showing
3 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8
4 announces does not require ‘detailed factual allegations,’ but it demands more than an
5 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
6 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore,
7 “recitals of elements of a cause of action, supported by mere conclusory statements do not
8 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning the
9 pleaded “factual content [] allows the court to draw the reasonable inference that the defendant
10 is liable for the misconduct alleged.” Id. at 678 (2009) (quoting Twombly, 550 U.S. at 556,
11 570)). “When there are well-pleaded factual allegations, a court should assume their veracity,
12 and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
13 at 679. Social security appeals are not exempt from the general screening requirements for IFP
14 cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. Mar. 8,
15 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)).
16 In the context of a social security appeal, courts within the Ninth District have established
17 four elements necessary for a complaint to survive a screening:
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First, the plaintiff must establish that []he has exhausted h[is] administrative
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remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced
20 within sixty days after notice of a final decision. Second, the complaint must
21 indicate the judicial district in which the plaintiff resides. Third, the complaint must
state the nature of the plaintiff's disability and when the plaintiff claims []he
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became disabled. Fourth, the complaint must contain a plain, short, and concise
23 statement identifying the nature of the plaintiff's disagreement with the
24 determination made by the Social Security Administration and show that the
plaintiff is entitled to relief.
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Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL
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890922 at *2). With regard to element four, a complaint is insufficient if it merely states that
1 ||the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012
2 ||WL 2521753 at *3 (‘Every plaintiff appealing an adverse decision of the Commissioner believes
3 || that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege
4 || facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead,
5 ||the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the
6 || Commissioner's decision was wrong.” Id. at *2.
7 After reviewing the amended complaint, the Court finds that Plaintiff has established the
8 || four elements necessary for a complaint to survive sua sponte screening. Plaintiff states that
9 resides in Oceanside, California and received a final decision from the Administrative Law
10 || Judge (“ALJ”) on February 3, 2023. ECF No. 5 at 1, 2. Plaintiff also states that he “suffers from
11 ||severe impairments which include Tendonitis of the shoulders and residuals of right shoulder
12 ||surgery; residuals of cervical fusion; degenerative changes of the lumbar spine; a history of
13 || quadriparesis of the right arm and leg; and obesity.” Id. at 2. Plaintiff clearly states his
14 || disagreement with the determination made by the Social Security Administration by alleging the
15 || decision was not supported by substantial evidence because she “did not resolve or explain
16 conflicts with the jobs the ALJ found and the Dictionary of Occupational Titles (DOT).
17 || Additionally, the ALJ also rejected favorable opinions based on vague ‘improvement’ in condition
18 || which was not a contradiction to the opinions.” Id. at 3.
19 CONCLUSION
20 Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs is
21 || GRANTED.
22 IT IS SO ORDERED.
23 Dated: 4/13/2023 lobe Mager
24 Hon. Barbara L. Major
United States Maqistrate Judde
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087480. Public record. Not legal advice.