Day v. Commissioner of Social Security

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 1/7/16 ORDERING that Plaintiff's Application to Proceed In Forma Pauperis, 2 is GRANTED. Plaintiff's Complaint, 1 , is DISMISSED; and Plaintiff is GRANTED thirty days from the date of service of this order to file an amended complaint; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA ANN DAY,

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No. 2:15-cv-02583-AC
Plaintiff,

v.

ORDER

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

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

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

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

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pauperis will be granted. 28 U.S.C. § 1915(a).
I. SCREENING STANDARD

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Granting IFP status does end the court’s inquiry. The federal IFP statute requires federal

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courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon

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which relief may be granted, or seeks monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915(e)(2).

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Plaintiffs must assist the court in making this determination by drafting their complaint so
that it contains a “short and plain statement” of the basis for federal jurisdiction (that is, the
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reason the case is filed in this court, rather than in a state court), as well as a short and plain

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statement showing that plaintiffs are entitled to relief (that is, who harmed the plaintiffs, and in

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what way). Plaintiffs’ claims must be set forth simply, concisely and directly. See “Rule 8” of

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the Federal Rules of Civil Procedure (Fed. R. Civ. P. 8). The Federal Rules of Civil Procedure

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are available online at www.uscourts.gov/rules-policies/current-rules-practice-

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procedure/federalrules-civil-procedure.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiffs’ favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010).

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However, the court need not accept the truth of legal conclusions that are phrased as

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factual allegations, or allegations that contradict matters properly subject to judicial notice. See

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Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

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2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II. ANALYSIS
“The exclusive method for obtaining judicial review of a final decision of the [Social

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Security Administration] is set forth in [42 U.S.C. § 405(g)].” Tate v. United States, 437 F.2d 88

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(9th Cir. 1971). This statute provides:
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Any individual, after any final decision of the Commissioner of
Social Security 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 notice of such decision or within such further
time as the Commissioner of Social Security may allow.

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§ 405(g). This provision operates as a statute of limitations setting the time period in which a

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claimant may appeal a final decision of the Commissioner of Social Security (“the

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Commissioner”). Bowen v. City of New York, 476 U.S. 467, 479 (1986). Because the appeal

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provision set forth in § 405(g) constitutes a waiver of sovereign immunity, courts must strictly

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construe the applicable time limit. Id.; see also Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir.

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2000) (affirming summary judgment in favor of the Commissioner for untimely filing of one

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day). Accordingly, a complaint appealing the Commissioner’s denial of an application for social

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security benefits must allege the dates of the plaintiff’s application(s) and the related denial(s).

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Cribbet v. Comm’r of Soc. Sec., No. 1:12-CV-01142-BAM, 2012 U.S. Dist. LEXIS 155574, at

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*2–3 (E.D. Cal. Oct. 29, 2012) (M.J. McAuliffe); Cook v. Astrue, No. 1:12-CV-00347-GSA,

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2012 U.S. Dist. LEXIS 31999, at *5–7 (E.D. Cal. Mar. 9, 2012) (M.J. Austin); Sanchez v. Astrue,

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No. 1:11-CV-00607 GSA, 2011 WL 1549307, at *2–3 (E.D. Cal. Apr. 21, 2011) (M.J. Austin).

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The plaintiff must also allege that he or she appealed to the Appeals Council, setting forth the

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application date, the decision date, and the outcome. Id.

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Here, the entirety of plaintiff’s complaint reads as follows:
I Lisa Ann Day is filing A formal complaint to the Commissioner
of Social Security. I feel I have been treated unfairly due to the
circumstances. I was only approved for two years and it was all
based on my carpol tunnal surgery I received in 2007. They have
not even looked at any of my other physical or mental disabilities.

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ECF No. 1. Plaintiff has not provided any dates related to her application or applications for

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disability benefits and the related denials. Therefore, it is impossible for the court to determine

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whether plaintiff's filing is timely and her complaint must be dismissed.

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Although plaintiff’s complaint contains deficiencies as outlined above, the court will

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allow plaintiff an opportunity to amend. If plaintiff decides to file an amended complaint, she is

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advised that an amended complaint supersedes the original complaint. Forsyth v. Humana, Inc.,
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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also

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Local Rule 220. Any amended complaint must (1) establish its timeliness, and (2) allege facts

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sufficient to show she is entitled to relief. Fed. R. Civ. P. 8(a). As the court has explained, to

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establish her complaint’s timeliness plaintiff must allege that she appealed the Commissioner’s

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denial of her application for benefits and when her appeal was denied. Plaintiff must also allege

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why it is the Commissioner’s decision was incorrect in terms that are both simple and concise.

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III. CONCLUSION

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In accordance with the foregoing, THE COURT HEREBY ORDERS that:

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1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED;

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2. Plaintiff’s complaint, ECF No. 1, is DISMISSED; and

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “First Amended Complaint”; plaintiff must file an original and two copies of

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the amended complaint; failure to file an amended complaint in accordance with this order will

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result in a recommendation that this action be dismissed.

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DATED: January 7, 2016

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