Thomas v. Commissioner of Social Security

Filing 15

INFORMATIONAL ORDER Setting Social Security Briefing Schedule for Pro Se Litigants, signed by Magistrate Judge Barbara A. McAuliffe on 9/22/17. Opening Brief Due: 11/6/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 LILLIE RUTH THOMAS, 14 Plaintiff, 15 16 17 18 v. NANCY A. BERRYHILL, Acting COMMISSIONER OF SOCIAL SECURITY, Case No. 1:17-cv-298-BAM INFORMATIONAL ORDER SETTING SOCIAL SECURITY BRIEFING SCHEDULE FOR PRO SE LITIGANTS Plaintiff’s Opening Brief Due: November 6, 2017 Defendant. 19 20 INFORMATIONAL ORDER TO PRO SE LITIGANTS 21 Plaintiff Lillie Ruth Thomas (“Plaintiff”) is proceeding pro se in an action seeking judicial 22 review of an administrative decision of the Commissioner of Social Security that denied, in whole 23 or in part, plaintiff’s claim for benefits under the Social Security Act. 24 This order provides the following helpful information, and basically serves as a step-by- 25 step guide for pro se litigants. Plaintiff is strongly urged to read and re-read this order and keep it 26 readily available for future reference. 27 As service of the Complaint (See Section I below) and the Administrative Record (See 28 1 1 Section II below) have already been completed, Plaintiff should first determine whether former 2 counsel has exchanged Confidential Letter Briefs (See Section II below) with Defendant and then 3 proceed to preparing her opening brief (See Section III below) due November 6, 2017. Out of the 4 abundance of caution, the Court will summarize all of the following steps Plaintiff is required to 5 6 take to prosecute this action. 7 I. 8 As is outlined in the Scheduling Order issued in this case, except when other provisions 9 are made pursuant to an application to proceed in forma pauperis, plaintiff shall serve a copy of 10 the (1) summons, (2) complaint, (3) notice of availability of a Magistrate Judge and the form of 11 12 13 Service of the Complaint consent/ decline to jurisdiction of United States Magistrate Judge (See Local Rule 305(a)), and (4) the Scheduling Order, within twenty (20) days of plaintiff filing the complaint.1 If plaintiff is proceeding in forma pauperis, the United States Marshal usually serves the 14 15 complaint. However, if plaintiff is not proceeding in forma pauperis, then plaintiff or legal 16 counsel is responsible for service and then filing a proof of service without delay. See Local Rule 17 210. 18 19 Lawsuits for review of administrative decisions made by the Commissioner of Social Security are prosecuted against the Commissioner of Social Security. Fed.R.Civ.P. 4(i)(2) and (3) 20 21 22 provides, in substance, that to serve the Commissioner in his official capacity, the party must serve (1) the United States, and (2) the Commissioner. 23 To serve the United States, a party must: 24 (1) deliver a copy of the summons and complaint to the United States Attorney for the 25 district where the action is brought, or to an Assistant United States Attorney or clerical employee 26 whom the United States Attorney designates in a writing filed with the Court; or, send a copy of 27 28 1 Plaintiff’s complaint was served on Defendant on March 7, 2017. 2 1 the summons and complaint, by certified mail only, to the Civil Process Clerk at the United States 2 Attorney’s Office; and, 3 (2) send a copy of the summons and complaint, by certified mail only, to the Attorney 4 General of the United States in Washington, D.C.; and, 5 6 (3) send a copy of the summons and complaint, by certified mail only, to the 7 Commissioner (the officer of the United States whose order is challenged by the lawsuit) in San 8 Francisco, CA. Fed.R.Civ.P. 4(i)(1)-(3). Initial service of process is thus sufficient if plaintiff 9 serves, by certified mail only, copies of the summons and complaint on: Office of the United 10 11 States Attorney Initial service of process is thus sufficient if plaintiff serves, by certified mail only, copies 12 13 14 15 of the summons and complaint on: Office of the United States Attorney Civil Process Clerk 2500 Tulare Street, Suite 4401 Fresno, CA 93721 16 17 18 19 20 21 22 Office of the Attorney General of the United States 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001 Office of the General Counsel Social Security Administration 333 Market Street, Suite 1500 San Francisco, CA 94105 after which a proof of service must be filed with the Court without delay pursuant to Local Rule 210. If plaintiff is proceeding in forma pauperis, the United States Marshal generally completes 23 the proof of service and files it with the Court; however, if plaintiff is not proceeding in forma 24 25 pauperis, it is plaintiff’s duty to promptly file a proof of service with the Court. 26 II. Attempt at Informal Resolution of the Case 27 Pursuant to the Scheduling Order, within one hundred twenty (120) days after service of 28 the complaint, defendant is required to serve a copy of the administrative record on plaintiff and 3 1 also file the administrative record with the Court, which serves as the answer to the complaint in 2 this proceeding. 3 Once the administrative record has been filed, the parties must try to resolve the case 4 informally. In this process, the parties must exchange informal briefs in the form of letters about 5 6 7 the case to see if they can agree that the case should be sent back, or “remanded,” to the Social Security Administration for a further hearing by an administrative law judge. 8 In the letter brief, plaintiff must briefly set forth (1) the issues in the case, (2) the reasons 9 why plaintiff thinks that plaintiff is entitled to Social Security benefits, and (3) why the decision 10 11 to deny benefits should be remanded. The letter brief must be marked “Confidential Letter Brief”, should not be filed with the 12 13 14 Court, and must be served on defendant within thirty (30) days from the date defendant served plaintiff with the administrative record, by mailing copies to all the attorneys listed 15 on the court docket as representing defendant, Commissioner of Social Security, at the 16 addresses noted on the court docket. 17 The name of the attorney or attorneys representing defendant are added to the court docket 18 at the time the Court receives defendant’s response to the complaint which, again, usually 19 consists of the administrative record. Sometimes the court docket lists not only an attorney at the 20 21 22 Office of the General Counsel of the Social Security Administration in San Francisco, CA, but also an attorney at the United States Attorney’s Office in Fresno, CA. In these particular cases, it 23 will then be necessary for plaintiff to mail copies of the confidential letter brief to more than one 24 attorney for defendant. 25 26 Defendant’s confidential letter brief must be served on plaintiff no later than thirty-five (35) days after defendant is served with plaintiff’s confidential letter brief. 27 If the parties agree to a remand, then the case will go back to the Social Security 28 4 1 Administration before any formal briefs are filed with the Court, and without the Court ever 2 considering the merits of the case. The parties’ agreement to remand the case must be set forth in 3 writing in a document titled “Stipulation and Order,” which must be signed and filed with the 4 Court no later than fifteen (15) days after defendant served its confidential letter brief on 5 6 plaintiff. See Local Rule 143(a)(1) & (b). 7 The informal letter briefs exchanged by the parties are confidential in the sense that they 8 are not filed with the Court. If the parties are unable to agree to a remand, the letters are not part 9 of the case file and, thus, are not before the Court if and when the Court finally considers the case 10 11 on the merits. III. Briefs 12 13 14 If, after exchanging confidential letter briefs, the parties are unable to agree to a remand of the case, then the parties must file formal briefs with the Court as directed in the Scheduling 15 Order. It is only after the formal briefs are filed with the Court that the Court will consider the 16 merits of the case and make a decision. 17 A. 18 Plaintiff’s opening brief must be filed and served no later than thirty (30) days from the 19 Plaintiff’s Opening Brief date defendant’s informal letter brief was served on plaintiff. Plaintiff must serve a copy of the 20 21 22 23 24 25 26 27 opening brief on all the attorneys listed for defendant on the court docket of the case at the addresses noted on the court docket. Plaintiff must also file the original opening brief, together with a copy, with the Court, by either personal delivery or via U.S. mail to: Office of the Clerk United States District Court Eastern District of California 2500 Tulare Street, Suite 1501 Fresno, CA 93721 28 5 1 Plaintiff’s opening brief must contain the following: 2 (1) a plain description of plaintiff’s alleged physical or emotional impairments, when 3 plaintiff contends they became disabling, and how they disabled plaintiff from work; 4 (2) a summary of the administrative proceedings before the Social Security 5 6 Administration; 7 (3) 8 (4) a summary of all relevant medical evidence, including an explanation of the 9 significance of clinical and laboratory findings, and the purpose and effect of prescribed 10 11 12 a summary of the relevant testimony at the administrative hearing; medication and therapy; (5) a recitation of the Social Security Administration’s findings and conclusions relevant to plaintiff’s claims; 13 14 (6) a short, separate statement of each of plaintiff’s legal claims stated in terms of the 15 insufficiency of the evidence to support a particular finding of fact or reliance on an erroneous 16 legal standard; and, 17 18 19 (7) argument separately addressing each claimed error. All references to the administrative record and all assertions of fact must be accompanied by citations to the administrative record. Argument in support of each claim of error must be 20 21 supported by citation to legal authority and explanation of the application of such authority to the 22 facts of the particular case. Briefs that do not substantially comply with these requirements will 23 be stricken. A document that is stricken becomes null and void and is not considered by the Court 24 for any purpose. 25 26 Plaintiff is further advised that failure to timely file an opening brief will result in dismissal of the action. 27 B. Defendant’s Responsive Brief 28 6 Pursuant to the Scheduling Order, defendant’s responsive brief is due filed and served on 1 2 plaintiff within thirty (30) days from the date of service of plaintiff’s opening brief on defendant. 3 C. Plaintiff’s Reply Brief 4 Plaintiff may file a reply brief, but is not required to do so, within fifteen (15) days from 5 6 the date defendant served its responsive brief on plaintiff. Plaintiff must serve a copy of the reply 7 brief on defendant by serving the United States Attorney for the Eastern District of California at 8 the address in Fresno, CA, noted above. Plaintiff must also file the original reply brief, together 9 with a copy, with the Court at the Court’s address in Fresno, CA, noted above. 10 11 Plaintiff’s reply brief should respond to the arguments made in defendant’s responsive brief. 12 13 14 IV. Motion to Dismiss In some cases, instead of serving and filing an administrative record, defendant may file a 15 motion to dismiss the case pursuant to Fed.R.Civ.P. 12., within one hundred twenty (120) days 16 from the date defendant is served with plaintiff’s complaint. 17 18 19 Plaintiff may oppose a motion to dismiss by filing and serving opposition to the motion within fourteen (14) days from the date the motion to dismiss was served on plaintiff, and should be titled “Opposition to Defendant’s Motion to Dismiss.” See Local Rule 230(c). 20 21 The Court will consider a motion to dismiss only after receiving opposition from plaintiff, 22 or after the time for filing opposition has passed. In ruling on a motion to dismiss the case, the 23 Court may either (1) deny the motion and proceed with the case, ordering the parties to proceed to 24 file the administrative record, attempt informal resolution, and file briefs; or, (2) grant the motion 25 to dismiss, and dismiss all or part of the case. 26 V. The Court’s Decision on the Merits 27 The Court will consider the merits of the case only after all briefs have been filed, and 28 7 1 may enter a judgment affirming, modifying, or reversing the determination of the Social Security 2 Administration. The Court may or may not remand the case to the Social Security Administration 3 for a further hearing. 4 VI. Summary of Deadline Calculations 5 6 7 8 9 10 11 Event Administrative Record Plaintiff’s Opening Brief Defendant’s Opening Brief Plaintiff’s Reply Brief Deadline Filed on July 7, 2017 Reference See Section II. above November 6, 2017 See Section III. A. above due 30 days after plaintiff’s opening brief filed due 15 days after defendant’s brief filed See Section III. B. above 12 VII. 13 See Section III. C. above Plaintiff is informed of the following: 14 A. Rules for Litigating the Action In litigating this action, the parties must comply with the Federal Rules of Civil 15 Procedure (Fed.R.Civ.P.), and the Local Rules of the United States District Court, Eastern District 16 17 18 of California (“Local Rules”). A copy of the Local Rules may be obtained in the Clerk’s Office at no charge. 19 Local Rule 206 is a special rule for social security actions. Specifically (a)(2) and (3) 20 generally states that complaints shall contain the last four digits of plaintiff’s social security 21 22 number only, i.e., XXX-XX-1234, and that plaintiff shall privately disclose to defendant, within five (5) days after a request is made to plaintiff, the full social security number of plaintiff. 23 Therefore, plaintiff shall refrain from disclosing the entire social security number on any 24 25 filings. 26 FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL RULES, OR A 27 COURT ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS FOR DISMISSAL 28 8 1 2 3 OR OTHER APPROPRIATE SANCTIONS. See Local Rule 110; Fed.R.Civ.P. 41(b). B. Documents intended to be filed with the Court must be mailed to the Clerk of the Court in Fresno, CA, at the address noted above. See Local Rule 134(a). All documents 4 inappropriately mailed directly to a judge's chambers will be stricken from the record. A 5 6 7 document requesting a court order must be styled as a motion, not a letter. See Fed.R.Civ.P. 7. C. Each document submitted for filing must include the original signature of the 8 filing party or parties. Local Rule 131; Fed.R.Civ.P. 11(a). All documents submitted without the 9 required signature(s) will be stricken. Each separate document must be separately stapled. See 10 Local Rule 130. If a document is stapled behind another document, it will not be filed and will 11 not enter the court docket. 12 13 14 D. All documents filed with the Court must be submitted with an additional legible copy to be conformed for the Court's use. See Local Rule 133(d)(2). A document submitted 15 without an extra copy for the Court’s use will be stricken. If the filing party wishes the Court to 16 return a file-stamped copy, an additional copy must be provided for that purpose (i.e., an original 17 and two copies, one for the Court’s use and one to be returned to the filing party), together with a 18 19 self-addressed, stamped envelope. The Court cannot provide copy or mailing service for a party, even for an indigent plaintiff proceeding in forma pauperis. Copies of documents from the 20 21 22 Court’s file may be obtained in the Clerk’s Office at the cost of fifty ($.50) cents per page. E. After any defendant has appeared in an action by filing a pleading responsive to 23 the complaint (i.e., an answer or a motion to dismiss), all documents filed with the Court must 24 include a proof of service stating that a copy of the document was served on the opposing party. 25 See 28 U.S.C. § 1746; F.R.Civ.P.5; Local Rule 135. A document submitted without the 26 27 required proof of service will be stricken. Where a party is represented by counsel, service on the party’s attorney of record constitutes effective service. 28 9 1 2 3 F. A pro se Plaintiff has an affirmative duty to keep the Court and opposing parties apprised of a current address. If plaintiff moves and fails to file a notice of change of address, service of court orders at plaintiff's prior address shall constitute effective notice. See Local Rule 4 182(f). If mail directed to plaintiff is returned by the United States Postal Service as 5 6 undeliverable, the Court will not attempt to re-mail it. If plaintiff’s address is not updated, in 7 writing, within sixty (60) days of mail being returned, the action will be dismissed for failure to 8 prosecute. See Local Rule 183(b). 9 10 IT IS SO ORDERED. 11 12 Dated: /s/ Barbara September 22, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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