Evaristo v. Social Security

Filing 3

Order denying 2 Application to Proceed without Prepayment of Fees and Affidavit and Report And Recommendations. The court recommends that the Plaintiff's Complaint be dismissed, subject to Plaintiff's ability to amend the complaint to meet the pleading requirements of Rule 8(a) and to show that he had exhausted his administrative remedies as set forth in 42 U.S.C. § 405(g). Signed by Magistrate Judge Joaquin V.E. Manibusan, Jr on 7/19/2016. (fad, )

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IN THE DISTRICT COURT

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FOR THE TERRITORY OF GUAM

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PAUL OPENA EVARISTO,
Plaintiff,

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vs.

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SOCIAL SECURITY,
Defendant.

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CIVIL CASE NO. 16-00024

ORDER
and
REPORT & RECOMMENDATION

ORDER

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The court has reviewed Plaintiff’s Complaint and his request for a waiver of fees (the

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“Application”). Based upon his Application, it appears that Plaintiff is qualified to proceed in forma

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pauperis, without paying the necessary fees as he has stated in his Application that he has a limited

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monthly income. However, the court orders that his Application to proceed in forma pauperis and

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thus move forward with this case be denied since it is also recommending below that his case be

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dismissed without prejudice.
REPORT & RECOMMENDATION

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The court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a)1 to

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mandatory screening, and order the dismissal of any claims it finds “frivolous, malicious, failing to

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state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune

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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir.

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Under this statute, federal courts can authorize the filing of a law suit without prepayment
of fees or security by a person who submits an affidavit that includes a statement setting forth all the
person’s assets and demonstrates an inability to pay such costs or give such security. The Plaintiff’s
Application is considered the “affidavit” required under 28 U.S.C. § 1915(a)(1).

Paul Opena Evaristo v. Social Security, Civil Case No. 16-00024
Order and Report & Recommendation

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2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua

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sponte dismiss an in forma pauperis complaint that fails to state a claim). A complaint must meet

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the requirements of Federal Rule of Civil Procedure 8, which mandates that a complaint include

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(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.

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Fed. R. Civ. P. 8(a).

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A complaint “must contain sufficient allegations of underlying facts to give fair notice and

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to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

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Cir. 2011).

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In this case, the Plaintiff has checked the “Federal question” box on the form Complaint,

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indicating that the basis for jurisdiction in this court is a federal question. See Compl. at §II (Basis

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for Jurisdiction), ECF No. 1. Section III of the form Complaint instructs the Plaintiff to “[w]rite a

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short and plain statement of the claim . . . [and s]tate as brieflty as possible the facts showing that

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each plaintiff is entitled to damages or other relief sought.” Id. at §III (Statement of Claim). There,

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the Plaintiff wrote “They have enough doctor’s evidence on my disabilities.” This single sentence

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does not meet the requirements of Rule 8(a). The Complaint does not contain sufficient allegations

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of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.

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Based on the lone statement contained in the Complaint, it appears the Plaintiff is challenging

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a decision of the Commissioner of the Social Security Administration (“SSA”) regarding disability

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benefits.2 A prerequisite to bringing a civil action against the SSA, the Plaintiff must exhaust his

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administrative remedies as set forth in the Social Security Act. See 42 U.S.C. § 405(g). “Section

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405(g) provides that a civil action may be brought only after (1) the claimant has been party to a

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The court notes that on the date the instant Complaint was filed, the Plaintiff also filed a
Complaint for Review of a Social Security Disability or Supplemental Security Income Decision.
See Paul Opena Evaristo v. Social Security, Civil Case No. 16-00023. The below-signed judge has
also recommended that said case be dismissed.

Paul Opena Evaristo v. Social Security, Civil Case No. 16-00024
Order and Report & Recommendation

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hearing held by the [Commissioner of Social Security], and (2) the [Commissioner of Social

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Security] has made a final decision on the claim.” Bass v. Social Sec. Admin., 872 F.2d 832, 833

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(9th Cir. 1989). What constitutes a “final decision” is defined through agency regulations rather

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than statutory text. See 42 U.S.C. § 405(a). Generally, if the SSA denies an application for disability

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benefits, the claimant can request reconsideration of the decision. 20 C.F.R. §§ 404.900(a)(2),

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404.907-404.909 and 404.920. If the claim is denied upon reconsideration, a claimant may request

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a hearing before an Administrative Law Judge (“ALJ”). See 20 C.F.R. §§ 404.900(a)(3), 404.930

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and 404.933. If the ALJ denies the claim, a claimant may request review of the decision by the

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Appeals Council. See 20 C.F.R. §§ 404.900(a)(4) and 404.955. If the Appeals Council declines to

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review the ALJ’s decision, the ALJ’s ruling will stand as the final decision, and a claimant may then

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request review by the United States District Court. See 20 C.F.R. §§ 404.900(a)(5) and 404.981.

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In this case, the Plaintiff has not alleged that he exhausted his administrative remedies. The

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Plaintiff has not attached a copy of the Commissioner’s final decision. The Plaintiff has not alleged

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that he petitioned the Social Security Appeals Council for review, nor has he alleged that the Appeals

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Council denied his request for review. The Plaintiff has not attached to the Complaint a copy of the

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notice he received from the Appeals Council that his appeal was denied. Because of these

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omissions, the court is unable to determine whether the Complaint was timely filed.

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Accordingly, the court recommends that the Plaintiff’s Complaint be dismissed, subject to

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Plaintiff’s ability to amend the complaint to meet the pleading requirements of Rule 8(a) and to show

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that he had exhausted his administrative remedies as set forth in 42 U.S.C. § 405(g).

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/s/ Joaquin V.E. Manibusan, Jr.
U.S. Magistrate Judge
Dated: Jul 19, 2016

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NOTICE
Failure to file written objections to this Report and Recommendation within
fourteen (14) days from the date of its service shall bar an aggrieved party
from attacking such Report and Recommendation before the assigned United
States District Judge. 28 U.S.C. § 636(b)(1)(B).