Cervantes v. Commissioner of Social Security

Filing 9

ORDER DIRECTING Clerk to Issue Summons and ORDER Directing United States Marshal for Service of the 8 Second Amended Complaint signed by Magistrate Judge Jennifer L. Thurston on 5/9/2013. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

TERRY ANN CERVANTES,
Plaintiff,

12
v.

13
14
15

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

16

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-00431 - JLT
ORDER DIRECTING CLERK TO ISSUE
SUMMONS
ORDER DIRECTING UNITED STATES
MARSHAL FOR SERVICE OF THE SECOND
AMENDED COMPLAINT
(Doc. 8)

17
Terry Ann Cervantes (“Plaintiff”) is proceeding in forma pauperis with an action seeking

18
19

judicial review of a determination of the Social Security Administration. On May 7, 2013, Plaintiff

20

filed her Second Amended Complaint in the action (Doc. 8), which is now before the Court for

21

screening.

22

I.

23

Screening Requirement
When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and

24

shall dismiss the case at any time if the Court determines that the action is “frivolous, malicious or

25

fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant

26

who is immune from such relief.” 28 U.S.C. 1915(e)(2). The Court must screen the First Amended

27

Complaint because an amended complaint supersedes the previously filed complaint. See Forsyth v.

28

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
1

1

II.

Pleading Standards

2

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

3

pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the

4

claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may

5

include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

6
7

succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

8

purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds

9

upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The

10

Supreme Court noted,
Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

11
12
13
14
15

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks, citations omitted). Conclusory

16

and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268

17

(9th Cir. 1982). The Court clarified further,
[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. [Citation]. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads
facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’

18
19
20
21
22
23

Iqbal, 566 U.S. at 677 (citations omitted). When factual allegations are well-pled, a court should

24

assume their truth and determine whether the facts would make the plaintiff entitled to relief;

25

conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant

26

leave to amend a complaint to the extent deficiencies of the complaint can be cured by an amendment.

27

Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

28

///
2

1

III.

Jurisdiction
Plaintiff seeks review of a decision by the Commissioner of Social Security denying disability

2
3

benefits. (Doc. 8). The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides

4

in relevant part:
Any individual, after any final decision of the Commissioner made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him
of such decision or within such further time as the Commissioner may allow. Such
action shall be brought in the district court of the United States for the judicial district
in which the plaintiff resides, or has his principal place of business . . . The court shall
have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.

5
6
7
8
9
10
11

Id. (emphasis added). Except as provided, “[n]o findings of fact or decision of the Commissioner shall

12

be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h). These regulations

13

“operate as a statute of limitations setting the time period in which a claimant may appeal a final

14

decision of the Commissioner.” Cogburn v. Astrue, 2013 U.S. Dist. LEXIS 152351, at * 5 (E.D. Cal.

15

Oct. 29, 2010) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Vernon v. Heckler, 811

16

F.2d 1274, 1277 (9th Cir.1987)). The time limit is a condition on the waiver of sovereign immunity,

17

and it must be strictly construed. Id.

18

IV.

19

Discussion and Analysis
According to Plaintiff, the Appeals Council denied her request for review of the decision

20

rendered by the administrative law judge on January 2, 2012, at which time the decision became the

21

final decision of the Commissioner. (Doc. 8 at 2). Therefore, Plaintiff’s request for review would be

22

due no later than March 7, 2013. However, Plaintiff requested the Appeals Council grant an extension

23

of time of thirty days to file a civil action on March 1, 2013. (Doc. 8).

24

An extension of the sixty-day filing deadline may be granted by the Commissioner where a

25

request is made to the Appeals Council in writing and with a showing that a claimant had “good cause

26

for missing the deadline[.]” 20 C.F.R. § 404.982; see also § 404.911 (considering the existence of

27

good cause, the Administration considers: (1) circumstances that kept the claimant from making the

28

request on time; (2) whether any action of the agency misled the claimant; (3) whether the claimant
3

1

did not understand the requirements of the Social Security Act resulting from amendments to the Act,

2

other legislation, or court decisions; and (4) whether the claimant had any limitations which prevented

3

her from timely filing).
The doctrine of equitable tolling allows for the statute of limitations to be extended in certain

4
5

circumstances, because the Social Security regulations were “designed to be ‘unusually protective’ of

6

claimants.” Bowen, 476 U.S. at 480. The Supreme Court noted,
[Social Security Administration] regulations governing extensions of time for filing are
based on considerations of fairness to claimants. Thus, the Secretary may grant an
extension where a suit was not timely filed because of illness, accident, destruction of
records, or mistake. Similarly, an extension may be granted where the claimant
misunderstands the appeal process or is unable to timely collect necessary information,
or where the Secretary undertook action that “misled” the claimant concerning his right
to review.

7
8
9
10
11
12

Id. at 480, n. 12 (citing 20 C.F.R. §§ 404.911,416.1411). Here, the Commissioner has not responded

13

to Plaintiff’s request for an extension of time, although the request was made within the sixty-day time

14

period. (Doc. 8 at 2). For this reason, it is appropriate to apply the doctrine of equitable tolling for

15

purposes of screening the compliant. See Aschettino v. Sullivan, 724 F.Supp. 1116 (W.D.N.Y. 1989)

16

(finding the plaintiff entitled to the doctrine of equitable of tolling when the Appeals Council did not

17

act on the request for extension or even acknowledge it).

18

V.

19

Conclusion and Order
Plaintiff’s Second Amended Complaint states a cognizable claim for judicial review of the

20

decision denying her request for Social Security benefits. Based upon the foregoing, IT IS HEREBY

21

ORDERED:

22

1.

Colvin, Acting Commissioner of Social Security;

23
24

The Clerk of Court is DIRECTED to issue summons as to the defendant Carolyn

2.

The Clerk of Court is DIRECTED to issue and serve Plaintiff with Social Security Case

25

Documents, including the Scheduling Order, Order regarding Consent, the Consent

26

Form, and USM-285 Forms;

27
28

3.

Plaintiff SHALL complete and submit to the Court the “Notice of Submission of
Documents in Social Security Appeal Form;” and
4

4.

1

The U.S. Marshal is DIRECTED to serve a copy of the Second Amended Complaint

2

(Doc. 8), summons, and this order upon the defendant as directed by Plaintiff in the

3

USM Forms.

4
5
6

IT IS SO ORDERED.

7
8
9

Dated:

May 9, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

9j7khijed

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5