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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

THO VAN HA,

v.

COMMISSIONER OF SOCIAL
SECURITY,

Plaintiff,

CASE NO. 13-cv-1211-LAB-BLM
ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

Defendant.

Tho Van Ha filed this case on May 21, 2013. Now pending is his Motion to Proceed

In Forma Pauperis (“IFP Motion”).
I.

IFP Motion.
All parties who institute a civil action in a district court of the United States, except for
habeas petitioners, must pay a filing fee of $350. See 28 U.S.C. § 1913(a). A party is
excused from paying the fee, however, if the Court grants leave to proceed In Forma
Pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
Cir. 1999). To proceed IFP, a plaintiff does not need to prove that he’s absolutely destitute,
but he does need to show that, because of his poverty, he cannot provide the filing fee and
still provide his dependants with the necessities of life. See Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 339-40 (1948).
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Plaintiff has met this standard. Plaintiff has been unemployed since 1991. His wife
earns $900 per month, so paying the fee would consume nearly 39 percent of his monthly
household income. His wife’s income pays for food, rent, and living expenses. His only
valuable assets are a 23-year-old Honda Accord and $50 in the bank. Though Plaintiff does
not support any children, the filing fee would consume a substantial portion of his household
income, so that he and his wife would likely be unable to purchase the necessities of life.
Ha’s IFP Motion is, therefore, GRANTED.
II.

Initial Screening
Under 28 U.S.C. § 1915(e), the Court must screen each civil action commenced
pursuant to 28 U.S.C. § 1915(a) and dismiss if the Court finds it is frivolous or malicious, fails
to state a claim upon which relief can be granted, or seeks monetary relief from an immune
defendant. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 45 (9th Cir. 2001)
(“[T]he provisions of 28 U.S.C. § 915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,
203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e) “not only permits but
requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim). The
Court finds that Plaintiff’s claim is neither frivolous nor malicious, nor does it seek monetary
relief from an immune defendant. The Court now turns to the sufficiency of the complaint to
withstand a motion to dismiss.

To survive a motion to dismiss, a complaint must contain facts that, taken as true,
“state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible if the facts alleged allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Plausibility means that, given the allegations in the
complaint, it is more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Further, in determining plausibility, the court should lean on its “experience and common
sense” to assess the claim in its particular context. Id. at 663-64, Twombly, 550 U.S. at 556.
Plaintiff appeals to the Court from an administrative ruling denying him supplemental
security income (“SSI”) benefits. The complaint alleges generally that the plaintiff, a former

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refugee , has been disabled since 2000 due to brain surgery, chronic leg and back pain,
head pain, and severe mental illness, including depression and memory loss as symptoms
of post-traumatic stress syndrome. The complaint provides the basis for the diagnosis, and
states that the Administrative Law Judge (“ALJ”) improperly disregarded the plaintiff’s
disabilities in denying SSI benefits. Plaintiff also claims the ALJ asked leading questions that
affected the fairness of the hearing, and that the ALJ yelled at him and intimidated his then-
attorney.

On the basis of these facts, the plaintiff alleges that: (1) the ALJ violated the
applicable Ninth Circuit standard, the Social Security Act, 42 U.S.C. § 405(g), and the
appropriate implementing regulations, 20 C.F.R. § 416.929 (1992), by not considering
medical evidence of plaintiff’s disability; (2) the ALJ violated the Commissioner’s
implementing regulations, 20 C.F.R. § 416.923, by not considering the cumulative impact of
the plaintiff’s impairments; (3) the ALJ did not give plaintiff a full and fair hearing, as required
under the Social Security Act, 42 U.S.C. § 1381 et. seq., and the Commissioner’s
implementing regulations, 20 C.F.R. § 416.927 (1992), because the ALJ did not give Ha’s
treating physician’s opinion sufficient weight; (4) the defendant did not provide a full and fair
hearing, violating the plaintiff’s Fifth Amendment due process rights; (5) the defendant did
not provide a full and fair hearing, violating the Administrative Procedure Act, 5 U.S.C. §
706(2)(A); (6) the ALJ did not base her decision on substantial evidence, violating the Social
Security Act, 42 U.S.C. § 1382c and 42 U.S.C. § 405(g); and (7) the purported interference
with plaintiff’s counsel violated the plaintiff’s Fifth Amendment due process rights.
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The Court is uncertain of the plaintiff’s background. The complaint states that the plaintiff “is a former
refugee from Iraq,” (Complaint, Doc. No. 1 at 2), while the plaintiff’s name and other documents filed with this
court indicate that the plaintiff is of Vietnamese ancestry, (Affidavit of Tho Van Ha, Doc. No. 1-1 at 4).

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Accepting the pleaded facts as true, the Court finds that plaintiff states facts that
plausibly entitle him to relief. Therefore, the Court finds that plaintiff may proceed IFP and
that his pleadings survive the initial screening as required under 28 U.S.C. § 1915(e).


IT IS SO ORDERED.

DATED: June 3, 2013

HONORABLE LARRY ALAN BURNS
United States District Judge

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