Walner v. Commissioner of Social Security

Filing 5

ORDER Directing Clerk to Issue Summons and Social Security Case Documents; ORDER Directing United States Marshal for Service of the First Amended Complaint 4 , signed by Magistrate Judge Jennifer L. Thurston on 12/1/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNIE LEE WALNER,
Plaintiff,

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v.

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

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Case No.: 1:16-cv-1646- JLT
ORDER DIRECTING CLERK TO ISSUE
SUMMONS AND SOCIAL SECURITY CASE
DOCUMENTS
ORDER DIRECTING UNITED STATES
MARSHAL FOR SERVICE OF THE FIRST
AMENDED COMPLAINT (Doc. 4)

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Previously, the Court dismissed Plaintiff’s complaint with leave to amend. (Doc. 3) On

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November 28, 2016, Plaintiff filed a First Amended Complaint (Doc. 4), which is now before the Court

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for screening.

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I.

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

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

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

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

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

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

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II.

Pleading Standards

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

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

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

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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

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

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

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

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Court noted: “A pleading that offers labels and conclusions or a formulaic recitation of the elements of

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a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of

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further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks,

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citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982). When factual allegations are well-pled, a court should

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

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conclusions in the pleading are not entitled to the same assumption of truth. Id.

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III.

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Discussion and Analysis
Plaintiff seeks review of a decision denying disability benefits. (Doc. 4) The Court may have

jurisdiction pursuant to 42 U.S.C. § 405(g), which provides in relevant part:

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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.

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

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

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

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

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

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

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and it must be strictly construed. Id.
Plaintiff alleges the Appeals Council denied his request for review of the decision rendered by

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an administrative law judge on September 9, 2016, at which time the decision became the final

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decision of the Commissioner. (Doc. 4 at 3) Therefore, Plaintiff’s action in this Court would be due

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65 days of the date of Appeal’s Council’s notice, or no later than November 12, 2016. See 42 U.S.C.

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§405(g) (noting a claimant is “presumed” to have received the notice of denial within “5 days after the

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date of such notice”). Because Plaintiff initiated this action November 1, 2016, the request for judicial

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review is timely, and the Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

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IV.

Conclusion and Order

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Plaintiff’s First Amended Complaint states a cognizable claim for judicial review of the

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decision denying the request for Social Security benefits. Based upon the foregoing, the Court

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ORDERS:

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1.

Colvin, Acting Commissioner of Social Security;

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

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

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

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Form, and USM-285 Forms;

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3.

Documents in Social Security Appeal Form;” and

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Plaintiff SHALL complete and submit to the Court the “Notice of Submission of

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The U.S. Marshal is DIRECTED to serve a copy of the First Amended Complaint,
summons, and this order upon the defendant as directed by Plaintiff in the USM Forms.

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IT IS SO ORDERED.
Dated:

December 1, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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