Franco v. Commissioner Social Security Administration

Filing 9

ORDER DISMISSING plaintiff's second amended complaint and DIRECTING plaintiff to file a third amended complaint within 30 days of service of this order. The third amended complaint should cure the deficiencies identified by the Court in this order; order signed by Magistrate Judge Sandra M. Snyder on 10/2/2012. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MIGUEL A. FRANCO,

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Plaintiff,

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CASE NO. 1:12-cv-01267-SMS
ORDER DISMISSING SECOND AMENDED
COMPLAINT FOR FAILURE TO STATE
A CLAIM, WITH LEAVE TO AMEND
WITHIN THIRTY DAYS

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.
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(Doc. 8)
/

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Screening Order
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
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Court shall dismiss the case at any time if the Court determines that . . . the action or appeal . . .
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fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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Plaintiff Miguel A. Franco, proceeding in forma pauperis, by his attorney, Law Offices of
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Rohlfing & Kalagian, LLP, filed his second amended complaint on September 20, 2012.
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Because Plaintiff’s second amended complaint fails to state a claim upon which relief can be
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granted, 28 U.S.C. § 1915(e)(2)(B)(ii) requires this Court to dismiss it.
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I.

Screening Requirement

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The statutory privilege of proceeding in forma pauperis is a privilege, not a right.
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Williams v. Field, 394 F.2d 329, 332 (9th Cir.), cert. denied, 393 U.S. 891 (1968); Smart v.
Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, (1965). “Indigence does not create a

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constitutional right to the expenditure of public funds and the valuable time of the courts in order
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to prosecute an action which is totally without merit.” Phillips v. Mashburn, 746 F.2d 782, 785
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(11th Cir. 1984). Accordingly, the statute requires the Court to screen any case in which a
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plaintiff proceeds in forma pauperis, as provided in 28 U.S.C. § 1915. Screening is required

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even if the plaintiff pursues an appeal of right, such as an appeal of the Commissioner’s denial of

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social security disability benefits. See, e.g., 42 U.S.C. § 405(g) (establishing conditions under

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which a claimant of social security benefits may seek judicial review of the Commissioner’s

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determination). A court must dismiss any case, regardless of the fee paid, if the action or appeal

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is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B).

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II.

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Cognizable Claim
In determining whether a complaint fails to state a cognizable claim, a court applies

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substantially the same standard applied in motions to dismiss pursuant to F.R.Civ.P. 12(b)(6).

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Gutierrez v. Astrue, 2011 WL 1087261 at *1 (E.D.Cal. March 23, 2011) (No. 1:11-cv-00454-

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GSA). “The focus of any Rule 12(b)(6) dismissal . . . . is the complaint.” Schneider v.

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California Department of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). A court must

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dismiss a complaint, or portion of a complaint, for failure to state a claim upon which relief can

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be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

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or her claim(s) that would entitled the plaintiff to relief. Hishon v. King & Spalding, 467 U.S.

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69, 73 (1984). When a court reviews a complaint under this standard, it must accept as true the

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complaint’s allegations (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740

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(1976)), construe the pleadings in the light most favorable to the plaintiff (Resnick v. Hayes, 213

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F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the plaintiff’s favor (Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969)).

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A.

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The sufficiency of a complaint is first determined by referring to F.R.Civ.P. 8(a) which

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requires that a civil complaint contain:
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a short and plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;

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a short and plain statement of the claim showing the pleader is entitled to
relief; and

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Short and Plain Statement

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(3)

a demand for the relief sought which may include relief in the alternative
or different types of relief.

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
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exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). A complaint appealing
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the Commissioner’s decision denying social security disability benefits is not exempt from the
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general rules of civil pleading. “While [42 U.S.C.] § 405(g) does not require that a complaint
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spell out the basis upon which relief might be granted, Rule 8(a) requires a civil plaintiff to assert
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the basis upon which he grounds his claim.” Brown v. Astrue, 2011 WL 3664429 at *2 (D. N.H.
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August 19, 2011) (No. 11-cv-056-JL). The complaint must “must simply give the defendant fair
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notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534
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U.S. at 512. In preparing his amended complaint, Plaintiff should state specifically why the facts
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of his situation did not support those of the ALJ’s legal conclusions that he contends where not
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supported by substantial evidence.
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B.

Principles of Pleading

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1.

Factual Allegations and Legal Conclusions

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Determining a complaint’s sufficiency invokes two underlying principles of pleading.
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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007). First, the Court must accept as true the well-pleaded factual allegations of the
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complaint. Twombly, 550 U.S. at 555. Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory
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statements, do not suffice.” Iqbal, 556 U.S. at 678. “Plaintiff must set forth sufficient factual
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matter accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949,
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quoting Twombly, 550 U.S. at 555.
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Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to
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relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff
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must set forth “the grounds of his entitlement to relief,” which “requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555-56
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(internal quotation marks and citations omitted). A complaint appealing the Commissioner’s
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denial of disability benefits must set forth a brief statement of facts setting forth the reasons why

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the Commissioner’s decision was wrong. Brown, 2011 WL 3664429 at *3. See also

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Demetriades v. Astrue, 2011 WL 4079054 (W.D.Va. September 13, 2011) (No. 7:11-cv-00407)

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(dismissing case without prejudice for failure to state a plausible claim for relief as a result of

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insufficient factual allegations); Ormsby v. Astrue, 2011 WL 3625101 at * 2, adopted by 2011

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WL 3625095 (M.D. Fla. August 4, 2011) (No. 6:11-cv-1262-ORL-22) (dismissing cursory

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complaint which alleged insufficient facts to state a cognizable claim).
While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S.

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at 678. A court is “not bound to accept as true a legal conclusion couched as a factual

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allegation.” Id. “Nor is the court required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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A legal conclusion is a statement such as, “ A person of Plaintiff’s age is not expected to

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make the vocational adjustment to sedentary work if he is unable to communicate in English.” A

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factual statement is one such as, “Plaintiff, born September 20, 1952, is sixty years old.”

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2.

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Plausible Claim for Relief

The second underlying principle is that “only a complaint that states a plausible claim for

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relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. To permit the Court to determine

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that a complaint states a plausible claim for relief, based on the reviewing court’s judicial

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experience and common sense, the well-pleaded facts must permit the court “to infer more than a

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mere possibility . . . . ‘that the pleader is entitled to relief.’” Id., quoting F.R.Civ.P. 8(a)(2). The

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Supreme Court explained:

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In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.

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Iqbal, 556 U.S. at 679.

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See also Cook v. Astrue, 2012 WL 812380 at *2 (E.D.Cal. March 9, 2012) (No. 1:12-cv-

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00347-GSA) (construing that the facts alleged in the complaint related to two legal conclusions);

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Sanchez v. Astrue, 2011 WL 1549307 (E.D. Cal. April 21, 2011) (No. 1:11-cv-00607-GSA).

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This means that the Court cannot accept a legal conclusions set forth in a complaint if the

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plaintiff has not supported his or her contentions with facts. For example, if a plaintiff alleges

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only that he or she is not capable of performing past work without setting forth facts that prove

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that he or she cannot do that work, the Court cannot assume that the contention is true.

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III.

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Conclusion and Order
In rejecting Brown’s complaint appealing the Commissioner’s denying him benefits, the

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Court observed, “”The complaint’s sole assertion of a basis for relief is that Brown feels the SSA

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decision was wrong.” Brown, 2011 WL 3664429 at *2. Every plaintiff appealing an adverse

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decision of the Commissioner believes that the Commissioner was wrong. The purpose of the

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complaint is to briefly and plainly allege facts supporting the legal conclusion that the

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Commissioner’s decision was wrong. Id. at *3. Plaintiff’s third amended complaint should do

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so.

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Because the second amended complaint fails to allege facts sufficient to state a claim

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upon which relief can be granted, this Court will dismiss it. The Court will provide Plaintiff with

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one additional opportunity to file an amended complaint curing the deficiencies identified by the

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Court in this order. Plaintiff must revise his complaint to allege facts sufficient to support a

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cognizable claim.

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Plaintiff’s third amended complaint should be brief, but must allege sufficient facts to

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establish his cause of action. Fed. R. Civ. P. 8(a). Plaintiff should focus on setting forth, as

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briefly but specifically as possible, the facts necessary to state a claim on which relief may be

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granted.

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Plaintiff must avoid including unnecessary language, as well as advocacy and argumentation

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more appropriate in his opening brief, which is to be submitted later.

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Plaintiff is advised that an amended complaint supercedes all prior complaints, Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff’d, 525 U.S. 299 (1999); King v. Atiyeh,
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814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior

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or superceded pleading.” Local Rule 15-220. “All causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567;

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accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s second amended complaint is dismissed with leave to amend for failure
to state facts sufficient to state a claim on which relief may be granted;

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2.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a
third amended complaint curing the deficiencies identified by the Court in this

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order; and

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3.

If Plaintiff fails to file an third amended complaint within thirty (30) days from

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the date of service of this order, this action will be dismissed with prejudice,

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
icido3

October 2, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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