# Valdivia v. O'Malley

> District Court, S.D. California · December 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10088778

## Case

- **Court:** District Court, S.D. California
- **Decided:** December 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10088778

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
Case No.: 23-cv-2245-BLM
11 NANCY VALDIVIA,

12 Plaintiff, ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
13 v. DISTRICT COURT WITHOUT
PREPAYING OF FEES OR COSTS AND
14 KILOLO KIJAKAZI, Acting Commissioner of
SCREENING COMPLAINT
Social Security,
15
Defendants.
16
17 The instant matter was initiated on December 7, 2023 when Plaintiff filed a complaint
18 seeking review of the Social Security Commissioner’s decision to deny Plaintiff’s “application for
19 Social Security Disability Insurance benefits under Title II for lack of disability.” ECF No. 1 at 1.
20 That same day, Plaintiff filed an Application to Proceed in District Court Without Prepaying Fees
21 or Costs. ECF No. 2.
22 Having reviewed the complaint and motion, the Court GRANTS Plaintiff’s motion to
23 proceed in district court without prepaying fees or costs and finds that Plaintiff’s complaint is
24 sufficient to survive screening.
25 Application to Proceed in District Court without Prepaying Fees or Costs
26 All parties instituting any civil action, suit, or proceeding in a district court of the United
27 States, except an application for a writ of habeas corpus, must pay a filing fee. 28 U.S.C.
1 is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), which states:
2
[A]ny court of the United States may authorize the commencement, prosecution
3 or defense of any suit, action or proceeding ... without prepayment of fees or
4 security therefor, by a person who submits an affidavit that includes a statement
of all assets such [person] possesses that the person is unable to pay such fees or
5
give security therefor.
6
The determination of indigency falls within the district court's discretion. California Men's
7
Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds by, 506 U.S.
8
194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion
9
in determining whether the affiant has satisfied the statute's requirement of indigency.”). It is
10
well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont
11
de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C.
12
§ 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his
13
poverty pay or give security for costs ... and still be able to provide for himself and dependents
14
with the necessities of life.” Id. at 339. At the same time, “the same even-handed care must
15
be employed to assure that federal funds are not squandered to underwrite, at public expense,
16
... the remonstrances of a suitor who is financially able, in whole or in material part, to pull his
17
own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). District courts tend to
18
reject IFP applications where the applicant can pay the filing fee with acceptable sacrifice to
19
other expenses. See, e.g., Allen v. Kelley, 1995 WL 396860, at *2 (N.D. Cal. 1995) (Plaintiff
20
initially permitted to proceed IFP, later required to pay $ 120 filing fee out of $ 900 settlement
21
proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (IFP application denied because
22
the plaintiff possessed savings of $ 450 and that was more than sufficient to pay the filing fee).
23
Moreover, the facts as to the affiant's poverty must be stated “with some particularity,
24
definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
25
Plaintiff has satisfied her burden of demonstrating that she is entitled to IFP status.
26
According to her affidavit in support of her application, Plaintiff is not employed, has no income,
27
and receives no other benefits. ECF No. 2 at 1-2. Plaintiff has $1,052.90 in two checking
1 accounts, and $1055.72 in a savings account. Id. at 2. Plaintiff owns a home valued at
2 $345,000, and a vehicle valued at $3,500. Id. at 3. Plaintiff’s monthly expenses approximately
3 include $1,397.15 for a home mortgage payment, $425 for utilities, $50 for home maintenance,
4 $20 for laundry and dry-cleaning, $250 for food, $75 for transportation, and $25 for recreational
5 expenses. Id. at 4. Plaintiff owes $70 on a credit card. Id. Plaintiff does not have any dependents
6 or a spouse who rely on her for support and no one owes her money. Id. at 3. Plaintiff does
7 not expect any major changes to her monthly income, expenses, assets, or liabilities over the
8 next twelve months. Id. at 5. While Plaintiff has money in bank accounts, one month of
9 expenses will deplete those accounts and she has no income. Based on the foregoing, the Court
10 finds that Plaintiff has established that she is unable to pay the $405 filing fee without impairing
11 her ability to pay for life’s necessities. See Adkins, 335 U.S. at 339-40. Accordingly, the Court
12 GRANTS Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs.
13 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915(a)
14 Complaints filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) are
15 subject to a mandatory screening by the Court. Lopez v. Smith, 203 F.3d 1122,
16 1127 (9th Cir. 2000); see also Alamar v. Social Security, 2019 WL1258846, at *3 (S.D. Cal. Mar.
17 19, 2019). A complaint should be dismissed if it is (1) “frivolous or malicious;” (2)
18 “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a
19 defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at
20 1126–27.
21 To survive, all complaints must contain “a short and plain statement of the claim showing
22 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8
23 announces does not require ‘detailed factual allegations,’ but it demands more than an
24 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
25 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore,
26 “recitals of elements of a cause of action, supported by mere conclusory statements do not
27 suffice.” Id. Instead, the plaintiff must state a claim that is plausible on its face, meaning the
1 is liable for the misconduct alleged.” Id. at 678 (2009) (quoting Twombly, 550 U.S. at 556,
2 570)). “When there are well-pleaded factual allegations, a court should assume their veracity,
3 and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
4 at 679. Social security appeals are not exempt from the general screening requirements for IFP
5 cases proceeding under § 1915(e). Montoya v. Colvin, 2016 WL 890922, at *2 (D. Nev. Mar. 8,
6 2016) (citing Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)).
7 In the context of a social security appeal, courts within the Ninth District have established
8 four elements necessary for a complaint to survive a screening:
9
First, the plaintiff must establish that she has exhausted her administrative
10 remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced
11 within sixty days after notice of a final decision. Second, the complaint must
indicate the judicial district in which the plaintiff resides. Third, the complaint must
12
state the nature of the plaintiff's disability and when the plaintiff claims she became
13 disabled. Fourth, the complaint must contain a plain, short, and concise statement
14 identifying the nature of the plaintiff's disagreement with the determination made
by the Social Security Administration and show that the plaintiff is entitled to relief.
15
16
Skylar v. Saul, 2019 WL 4039650, *1 (S.D. Cal. Aug. 27, 2019) (quoting Montoya, 2016 WL
17
890922 at *2). With regard to element four, a complaint is insufficient if it merely states that
18
the Commissioner was wrong in denying a plaintiff benefits. See id.; see also Hoagland, 2012
19
WL 2521753 at *3 (“Every plaintiff appealing an adverse decision of the Commissioner believes
20
that the Commissioner was wrong. The purpose of the complaint is to briefly and plainly allege
21
facts supporting the legal conclusion that the Commissioner’s decision was wrong.”). Instead,
22
the “complaint . . . must set forth a brief statement of facts setting forth the reasons why the
23
Commissioner’s decision was wrong.” Id. at *2.
24
After reviewing the complaint, the Court finds that Plaintiff has established the four
25
elements necessary for a complaint to survive screening. Plaintiff stated that she
26
resides in Calexico, California and received a final decision from the Social Security Appeals
27
Council on November 5, 2023. ECF No. 1 at 2, 3. Plaintiff also states that she has “carpal tunnel
1 syndrome, fibromyalgia, osteoarthritis, depression, [and] anxiety” and she became disabled on
2 ||November 22, 2017. Id. at 2. Plaintiff clearly states her disagreement with the determination
3 ||made by the Social Security Administration by alleging that (1) “[t]he RFC specifically prohibits
4 || production rate pace, however, the ALJ found that Plaintiff can perform the job of assembler,
5 ||which the DOT indicates is performed on an assembly line”; and (2) “[t]he ALJ found Dr.
6 || Kramer's opinion persuasive that Plaintiff ‘would have difficulty concentrating persisting her work
7 || at the moderate to severe level’ and ‘[h]er ability to interact with others and finish tasks would
8 ||be quite compromised,’ however, did not incorporate any limitations to account for Plaintiff’s
9 || persistent limitations. Whether Plaintiff can complete tasks is central to the question of whether
10 can maintain work activity.” Id. at 2.
11 CONCLUSION
12 Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs is
13 ||GRANTED and finds that Plaintiff's complaint is sufficient to survive sua sponte screening.
14 IT IS SO ORDERED.
15 ||Dated: 12/14/2023 /vnbe Mg ore
16 Hon. Barbara L. Major
United States Maqistrate Judde

18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10088778. Public record. Not legal advice.