Nelson v. Commissioner of Social Security

Filing 3

ORDER granting 2 Motion to Proceed IFP signed by Magistrate Judge Gregory G. Hollows on 10/3/11: Plaintiff's complaint is dismissed with leave to file an amended complaint within twenty-eight (28) days from the date of service of this Order. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BAILEY J. NELSON,

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Plaintiff,

CIV S-11-2520 GGH

vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

ORDER

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Defendant.
__________________________________/
Plaintiff has requested authority under 28 U.S.C. § 1915 to proceed in forma

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pauperis. Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is

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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).

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The complaint as filed is insufficient, however. Although plaintiff requests that

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the Social Security Administration reexamine its decision, plaintiff does not allege that he

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received a final decision from the SSA, which is a jurisdictional requirement. Federal courts may

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only review final decisions of the Commissioner. 42 U.S.C. § 405(g). For example, an Appeals

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Council denial of review of the ALJ’s decision is a final decision. Ramirez v. Shalala, 8 F.3d

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1449, 1451 (9th Cir. 1993). Plaintiff will be given leave to file an amended complaint. The

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amended complaint shall state whether plaintiff received a final decision, and if so, the date of
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that decision by the Appeals Council.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is granted.

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2. Plaintiff’s complaint is dismissed for the reasons discussed above, with leave

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to file an amended complaint within twenty-eight (28) days from the date of service of this Order.

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Failure to file an amended complaint will result in a recommendation that this action be

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dismissed.

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Dated: October 3, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/nelson2520.ifp.wpd

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