Johnson v. Saul, Case No.: 20-CV-747 JLS (AHG)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtHon. Janis L. Sammartino United States District Judge
Decision Date14 June 2020
PartiesJAMES JOHNSON, Petitioner, v. ANDREW M. SAUL, Commissioner, Social Security Administration, Respondent.
Docket NumberCase No.: 20-CV-747 JLS (AHG)

JAMES JOHNSON, Petitioner,
v.
ANDREW M. SAUL, Commissioner, Social Security Administration, Respondent.

Case No.: 20-CV-747 JLS (AHG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 14, 2020


ORDER: (1) GRANTING PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS, (2) GRANTING PETITIONER'S MOTION FOR PAGE COUNT WAIVER, (3) DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR ELECTRONIC ACCESS, (4) DISMISSING WITHOUT PREJUDICE WRITS, (5) DENYING AS MOOT PETITIONER'S REMAINING MOTIONS

(ECF Nos. 1, 2, 3, 4, 5, 6, 10)

Presently before the Court are Petitioner James Johnson's Writs of Mandamus (1 to 6) (Redacted) ("Writs," ECF No. 1), as well as his Application to Proceed in District Court Without Prepaying Fees or Costs ("IFP Motion," ECF No. 2), Request for Appointment of Counsel ("Counsel Mot.," ECF No. 3), Ex Parte Motion for Electronic Access and E-mail Noticing ("CM/ECF Mot.," ECF No. 4), Ex Parte Motion for Page Count and Local Rule Waiver ("Page Count Mot.," ECF No. 5), Ex Parte Motion for Attorney's Fees and Costs

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("Fee Mot.," ECF No. 6), and Ex Parte Emergency Motion to Bifurcate Writs 1 to 6 ("Bifurcation Mot.," ECF No. 10). Having carefully considered Petitioner's Motions, legal arguments, and the applicable law, the Court GRANTS Petitioner's IFP and Page Count Motions; DENIES WITHOUT PREJUDICE Petitioner's CM/ECF Motion; DISMISSES WITHOUT PREJUDICE Petitioner's Writs; and DENIES WITHOUT PREJUDICE AS MOOT Petitioner's Counsel, Fee, and Bifurcation Motions.

IN FORMA PAUPERIS MOTION

All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's or petitioner's failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does not specify the qualifications for proceeding IFP, the plaintiff's or petitioner's affidavit must allege poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff or petitioner leave to proceed IFP may be proper, for example, when the affidavit demonstrates that paying court costs will result in a plaintiff's or petitioner's inability to afford the "necessities of life." Id. The affidavit, however, need not demonstrate that the plaintiff or petitioner is destitute. Id.

Here, Petitioner's affidavit shows that he earns $930.00 per month in disability, with no other sources of income. See IFP Mot. at 1-2. Petitioner has $100.00 cash, see id. at 2; $2.00 in his checking account, see id.; and a Honda Accord LX worth approximately $1,000.00. See id. at 3. Petitioner is currently homeless, see id. at 4, and his monthly expenses equal his monthly disability income. See id. at 4-5.

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The Court concludes that Petitioner adequately has demonstrated that paying the $400 filing fee would result in his inability to afford the necessities of life. Accordingly, the Court GRANTS Petitioner's IFP Motion.

PAGE COUNT MOTION

Noting that, "[b]y the time the court reviews this case, [he] will likely already be homeless, thus unable to effectively make changes to the filings," Petitioner requests that the Court "provide a local rule waiver (if any is needed) as it relates to page counts and mundane aspects of brief and writ construction, given Petitioner is severely disabled, limited in abilities, forced Pro Se and the fact the Writ of Mandamus is actually 6-parts (6-Writs)." Page Count Mot. at 1-2.

"Although [courts] construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure." Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Consequently, the Court is unable—and unwilling—to provide a blanket waiver to the Federal Rules of Civil Procedure and this District's Local Rules.

Further, pursuant to Civil Local Rule 7.1(h) (emphasis added), "[b]riefs or memoranda in support of all motions . . . noticed for the same motion day must not exceed a total of twenty-five (25) pages in length . . . for all such motions without leave of the judge who will hear the motion." This means that Petitioner's Writs were limited to a total of twenty-five pages; however, Petitioner's Writs alone consist of 244 pages, with an additional 926 pages of declarations and exhibits. Particularly given Petitioner's claim to entitlement to "emergency" relief because "[t]ime is of the [e]ssence," see, e.g., Writs at 8, 26, 87; Bifurcation Motion, Petitioner is encouraged to hew as closely as possible to the District's page limitations. See infra pages 11-12. Nonetheless, the Court will not reject the Writs as currently filed for failure to comply with these page limits. Accordingly, the Court GRANTS Petitioner's Page Count Motion, although the Court also counsels Petitioner to be mindful of the Court's finite resources.

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CM/ECF MOTION

Generally, "[e]xcept as prescribed by local rule, order, or other procedure, the Court has designated all cases to be assigned to the Electronic Filing System." S.D. Cal. CivLR 5.4(a). With respect to pro se litigants, however, "[u]nless otherwise authorized by the court, all documents submitted for filing to the Clerk's Office . . . must be in legible, paper form." Office of the Clerk, United States District Court for the Southern District of California, Electronic Case Filing Administrative Policies and Procedures Manual, § 2(b) (Aug. 1, 2019) [hereinafter, "ECF Manual"]. "A pro se party seeking leave to electronically file documents must file a motion and demonstrate the means to do so properly by stating their equipment and software capabilities in addition to agreeing to follow all rules and policies in the CM/ECF Administrative Policies and Procedures Manual." Id. The manual refers to the Court's official web site for CM/ECF technical specifications, id. at § which include a "[c]omputer running Windows or Macintosh"; "[s]oftware to convert documents from a word processor format to portable document format (PDF)," such as "Adobe Acrobat 7.0 and higher"; "[i]nternet access supporting a transfer rate of 56kb or higher"; a compatible browser, such as "Firefox 15, Internet Explorer 9, and Safari 5.1/6 or later version"; a "[s]canner to image non-computerized documents 400 pixels per inch (ppi)"; and a PACER account. United States District Court, Southern District of California, CM/ECF: General Info, https://www.casd.uscourts.gov/cmecf.aspx#undefined1 (last visited June 8, 2020) [hereinafter, "CM/ECF: General Info"].

Petitioner indicates that he "ha[s] access to a computer with internet access and the latest version of Mozilla Firefox as well as an ability to read PDF files" and "an ability to create PDF files at this time." CM/ECF Mot. at 2. Petitioner also explains that "[he is] indigent (live[s] below the Federal Poverty Guidelines) and live[s] far away from the court house" and "[i]t costs [him] about $25 round trip to drive to the court house each time so [he] ha[s] a genuine need to try and reduce this cost, give it consumes [his] food money." Id. at 1. Further, "[Petitioner is] also disabled and unable to sit for prolong periods of time,

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which makes driving to and from the court house difficult and often painful physically." Id. at 1-2.

Although the Court sympathizes with Petitioner's situation, he has failed to indicate that he has access to all of the hardware and software necessary to participate in CM/ECF. See CM/ECF: General Info. Further, the Court has concerns regarding Petitioner's continuing access to these resources given that he is now homeless, see, e.g., Writs at 9; IFP Mot. at 4; Page Count Mot. at 1, although the Court recognizes that Petitioner's homelessness presents its own challenges when it comes to paper filing. Nonetheless, paper filing is the default for pro se litigants, see ECF Manual § 2(b), and it is incumbent on Petitioner to demonstrate that access to CM/ECF is warranted. See id. Accordingly, the Court DENIES WITHOUT PREJUDICE Petitioner's CM/ECF Motion.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

I. Standard of Review

Because Petitioner is proceeding IFP, his Writs require a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Bell-Sparrow v. Am. Arbitration Ass'n, No. 19-CV-00997-TSH, 2019 WL 1767203, at *1 (N.D. Cal. Apr. 22, 2019) (screening IFP writ); Banks v. Song, No. 17-CV-1460 JLS (WVG), 2017 WL 4810097, at *1 (S.D. Cal. Oct. 25, 2017) (same); Street v. Arizona, No. CV-11-08009-PCT-NVW, 2011 WL 206143, at *1 (D. Ariz. Jan. 20, 2011) (same); Bird v. Bowen, No. CIVS081088MCECMK, 2008 WL 3059466, at *1 (E.D. Cal. Aug. 5, 2008) (same). Under this statute, the Court must sua sponte dismiss a complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.)

"The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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