Sepeda v. Commissioner of Social Security

Filing 5

ORDER GRANTING Plaintiff's Motions to Proceed Informa Pauperis 2 4 ; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 3/12/2014. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JEANETTE SEPEDA,
Plaintiff,

12
v.

13
14
15

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

16

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:14-cv-00228 - JLT
ORDER GRANTING PLAINTIFF’S MOTIONS TO
PROCEED INFORMA PAUPERIS
(Docs. 2, 4)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

17
Jeanette Sepeda (“Plaintiff”) seeks to proceed in forma pauperis with an action seeking judicial

18
19

review of a determination of the Social Security Administration denying her application for benefits.

20

Pending before the Court are the complaint (Doc. 1) and applications to proceed in forma pauperis

21

(Docs. 2 and 4) filed by Plaintiff.

22

I.

23

Proceeding in forma pauperis
The Court may authorize the commencement of an action without prepayment of fees “but a

24

person who submits an affidavit that includes a statement of all assets such person . . . possesses [and]

25

that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court

26

has reviewed the amended motion to proceed in forma pauperis and has determined Plaintiff satisfies

27

the requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff’s motions to proceed in forma pauperis

28

1

1

are GRANTED.

2

II.

Screening Requirement
When an individual seeks to proceed in forma pauperis, the Court is required to review the

3
4

complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or

5

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

6

who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A plaintiff’s claim

7

is frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or

8

not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S.

9

25, 32-33 (1992).

10

III.

Pleading Standards

11

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

12

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

13

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

14

include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).

15

A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

16

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

17

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

18

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

19

Supreme Court noted,

22

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.

23

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague

24

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

25

268 (9th Cir. 1982). The Court clarified further,

20
21

26
27
28

[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
2

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.’

1
2
3
4

Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

5

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

6

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

7

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

8

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

9

IV.

Jurisdiction

10

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

11

benefits. (Doc. 1). The Court would have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides

12

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.

13
14
15
16
17
18
19

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

20

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

21

These regulations “operate as a statute of limitations setting the time period in which a claimant may

22

appeal a final decision of the Commissioner.” Berrigan v. Astrue, 2010 U.S. Dist. LEXIS 115390, at

23

*4-5 (E.D. Cal. Oct. 29, 2010) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Matthews

24

v. Eldridge, 424 U.S. 319, 328 n. 9 (1976)). The time limit is a condition on the waiver of sovereign

25

immunity, and it must be strictly construed. Id.

26

V.

27
28

Discussion and Analysis
According to Plaintiff, the Appeals Council denied her request for review of the decision
3

1

rendered by the administrative law judge on November 17, 2013, at which time the decision became

2

the final decision of the Commissioner. (Doc. 1 at 2). Therefore, Plaintiff’s request for review was to

3

be filed no later than January 21, 2014, which includes the sixty days provided by 42 U.S.C. § 405(g)

4

and five days for notice. See 20 C.F.R. §§404.90, 416.1401 (a claimant is presumed to have received

5

notice of a decision within five days after the notice was mailed). Plaintiff’s counsel requested the

6

Appeals Council grant an extension of time to file a civil action January 22, 2014. (Doc. 1, Exh. 1).

7

Plaintiff does not allege the Appeals Council responded to the belated extension of time. Therefore,

8

from the face of Plaintiff’s complaint, it does not appear the Court has jurisdiction over the matter.

9

VI.

10

Leave to Amend the Complaint
Leave to amend should be granted to the extent that the deficiencies of the complaint can be

11

cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). A complaint, or

12

a portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted

13

if it appears beyond doubt that the Plaintiff can prove no set of facts, consistent with the allegations, in

14

support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467

15

U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt

16

Lake Log Owners’ Ass’n., Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).

17

Here the Court cannot find with certainty that Plaintiff cannot allege facts supporting a finding

18

that the Court has jurisdiction over the matter. The Court will grant Plaintiff leave to amend the

19

complaint to cure the deficiencies of this complaint by stating the necessary information regarding if

20

and when the request for an extension of time was granted by the Appeals Council. Failure to cure the

21

deficiencies will result in a recommendation that the matter be dismissed.

22

Plaintiff is informed that the Court cannot refer to a prior pleading in order to make her

23

amended complaint complete. Local Rule 220 requires that an amended complaint be complete in

24

itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the

25

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an

26

amended complaint, the original pleading no longer serves any function in the case.

27
28

4

1

The amended complaint must bear the docket number assigned this case and must be labeled

2

“First Amended Complaint.” Failure to file an amended complaint in accordance with this order will

3

be considered to be a failure to comply with an order of the Court pursuant to Local Rule 110 and will

4

result in dismissal of this action.

5

Accordingly, IT IS HEREBY ORDERED:

6

1.

Plaintiff’s motions to proceed in forma pauperis (Docs. 2 and 4) are GRANTED;

7

2.

Plaintiff’s complaint IS DISMISSED with leave to amend; and

8

3.

Plaintiff is GRANTED 30 days from the date of service of this order to file an
amended complaint that complies with the requirements of the pertinent substantive

9

law, the Federal Rules of Civil Procedure, and the Local Rules of Practice.

10
11
12
13
14

IT IS SO ORDERED.
Dated:

March 12, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

5