Greer v. Commissioner of Social Security

Filing 6

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 2/8/2016. Second Amended Complaint due within 21 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DARREN HUGH GREER,
Plaintiff,

12
v.

13
14
15

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

16

) Case No.: 1:16-cv-00042 - JLT
)
) ORDER DISMISSING FIRST AMENDED
) COMPLAINT WITH LEAVE TO AMEND
)
)
)
)
)
)
)

17
Plaintiff Darren Hugh Greer is proceeding in forma pauperis with an action for judicial review

18
19

of the decision to deny his application for Social Security benefits. On February 3, 2016, Plaintiff

20

filed his First Amended Complaint. (Doc. 5) Because the facts alleged are insufficient for the Court

21

to determine whether this action was timely filed, the First Amended Complaint is DISMISSED with

22

leave to amend.

23

I.

24

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

25

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

26

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

27

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

28

Complaint because an amended complaint supersedes the previously filed complaint. See Forsyth v.
1

1

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

2

II.

Pleading Standards

3

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

4

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

5

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

6

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

7
8

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

9

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

10

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

11

Supreme Court noted,

14

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.

15

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

16

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

17

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

12
13

[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, 556 U.S. at 679 (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; legal

25

conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a

26

complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith,

27

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

28

///
2

1

III.

Discussion and Analysis
Plaintiff requests that the Court “review a decision by the Commissioner of the Social Security

2
3

Administration denying Plaintiff’s applications for Social Security Disability Insurance benefits and

4

Supplemental Security Income payments.” (Doc. 5 at 1) The Court may jurisdiction pursuant to 42

5

U.S.C. § 405(g), which provides 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.

6
7
8
9
10
11
12

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

13

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

14

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

15

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

16

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

17

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

18

immunity, and it must be strictly construed. Id.

19

Here, Plaintiff alleges the administrative law judge issued a decision on January 15, 2014, and

20

the Appeals Council denied his request for review of the decision on March 19, 2015. (Doc. 5 at 2)

21

Plaintiff alleges he requested an extension of time to file an action, which was granted by the Appeals

22

Council on December 10, 2015. (Id.) However, Plaintiff fails to allege the duration of the extension,

23

or the number of days he had to file the action. Without such information, the Court is unable to

24

determine whether the action is timely, or whether the Court has jurisdiction over the matter pursuant

25

to 42 U.S.C. § 405(g).

26

IV.

27
28

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

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

1

may be able to allege facts supporting a finding that the Court has jurisdiction over the matter. The

2

Court will grant Plaintiff leave to amend the complaint to cure the factual deficiencies of this complaint

3

by stating the necessary information, including the duration of the extension granted by the Appeals

4

Council.

5
6

The amended complaint must bear the docket number assigned this case and must be labeled
“Second Amended Complaint.”

7

Accordingly, IT IS HEREBY ORDERED:

8

1.

Plaintiff’s First Amended Complaint IS DISMISSED with leave to amend; and

9

2.

Plaintiff is GRANTED 21 days from the date of service of this order to file a Second

10

Amended Complaint that complies with the requirements of the pertinent substantive

11

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

12
13
14
15

IT IS SO ORDERED.
Dated:

February 8, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
4