Varao v. Berryhill

Filing 8

ORDER adopting 5 Report and Recommendation; and Order of Dismissal Without Prejudice. Because Varao agrees the original complaint is subject to dismissal, the Court overrules her objections 7 , adopts the R&R, and dismisses the complaint without prejudice. Varao shall file her proposed amended complaint within 14 calendar days of the date this order is issued. Judge Burkhardt should screen the amended complaint and, if appropriate, order it served. Signed by Judge Larry Alan Burns on 1/4/2018. (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEPHANIE RAE VARAO,
Plaintiff,

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v.

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NANCY A. BERRYHILL,I, Acting
Comm'r of Social Security,

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Case No.: 17CV2463-LAB (JLB)
ORDER ADOPTING REPORT
AND RECOMMENDATION; AND
ORDER OF DISMISSAL
WITHOUT PREJUDICE

Defendant.

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Plaintiff Stephanie Varao took appealed the denial of social security disability

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benefits. As provided by 28 U.S.C. § 636(b), the case was referred to Magistrate

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Judge Jill Burkhardt for report and recommendation.

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Judge Burkhardt granted Varao’s motion to proceed in forma pauperis

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(“IFP”), then conducted the mandatory screening required by 28 U.S.C. ' 1915(e).

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In her report and recommendation (the “R&R”), Judge Burkhardt noted that the

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complaint did not meet the standard set forth in Fed. R. Civ. P. 8 and discussed in

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The R&R recommended dismissal of

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the complaint without prejudice.

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Varao then filed a document styled as her objections to the R&R. A district

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court has jurisdiction to review a Magistrate Judge's report and recommendation
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17CV2463-LAB (JLB)

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on dispositive matters. Fed. R. Civ. P. 72(b). The Court may accept, reject, or

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modify, in whole or in part, the R & R's findings or recommendations. 28 U.S.C.

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§ 636(b)(1). The Court reviews de novo those portions of the R & R to which

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specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir.2003) (en banc).

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Varao’s “objections” in fact agree with everything in the R&R, and attach a

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proposed amended complaint which she believes cure the defects the R&R

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identified. Because Varao agrees the original complaint is subject to dismissal,

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the Court OVERRULES her objections, ADOPTS the R&R, and DISMISSES THE

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COMPLAINT without prejudice. Varao shall file her proposed amended complaint

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promptly — and in any event, within 14 calendar days of the date this order is

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issued.

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appropriate, order it served.

Judge Burkhardt should screen the amended complaint and, if

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IT IS SO ORDERED.
Dated: January 4, 2018

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Hon. Larry Alan Burns
United States District Judge

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17CV2463-LAB (JLB)