Bushhead v. Astrue

Filing 2

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the complaint (#1-1), issue summons to the Defendants named in the complaint, deliver the same to the U.S. Marshal for service, and send blank copies of the USM-285 forms to the Plaintiff. Plaintiff shall have twenty (20) days to furnish to the U.S. Marshal the required USM-285 forms. Signed by Magistrate Judge Cam Ferenbach on 6/8/12. (Copies have been distributed pursuant to the NEF - ECS, cc: USM with summons & complaint)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ELLIOTT BUSHHEAD,
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Plaintiff,

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v.
MICHAEL J. ASTRUE
Commissioner of Social Security,

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Defendant.
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2:12-cv-00921-JCM -VCF
ORDER

Before the court are Plaintiff Elliott Bushhead’s Motion/Application to Proceed In Forma

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Pauperis (#1) and Complaint (#1-1).

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I.

In Forma Pauperis Application

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In Plaintiff Bushhead’s application (#1), Plaintiff asserts that he receives $300 per month from

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the Moapa Band of Paiutes as a tribe member, but is currently unemployed. (#1). Plaintiff has $25 in

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his bank account and he receives food stamps. Id. Plaintiff’s monthly expenses include: $50 in rent

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(subsidized through the Moapa Band of Paiutes Housing Authority), $60 for utilities, $10 for telephone,

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$37 for water, and $50 for transportation to doctor’s appointments and to run errands. Id. Accordingly,

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Plaintiff’s request to proceed in forma pauperis is granted pursuant to § 1915(a).

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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to § 1915(e). Specifically, federal courts are given the authority to dismiss a case

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if the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. § 1915(e)(2). “To survive

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a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim

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to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

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and citation omitted).

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In considering whether the Plaintiff has stated a claim upon which relief can be granted, all

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material allegations in the complaint are accepted as true and are to be construed in the light most

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favorable to the Plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). When a court

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dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with

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directions as to curing its deficiencies, unless it is clear from the face of the complaint that the

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deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.

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1995) (citation omitted).

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A.

Jurisdiction

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Pursuant to 28 U.S.C. § 1331, federal district courts have jurisdiction over “all civil actions

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arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal law

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either where federal law creates the cause of action or ‘where the vindication of a right under state law

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necessarily turn[s] on some construction of federal law.’” Republican Party of Guam v. Gutierrez, 277

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F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation

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Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of federal-question jurisdiction is governed

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by the “well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under

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the well-pleaded complaint rule, “federal jurisdiction exists only when a federal question is presented

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on the face of the plaintiff’s properly pleaded complaint.” Id.

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Plaintiff’s complaint seeks a review of the final decision of the Commissioner of Social Security

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denying Plaintiff’s application for Social Security benefits under Title II and Title XVI of the Social

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Security Act. (#1-1). Pursuant to 42 U.S.C. § 405(g), “any individual, after any final decision of the

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Commissioner of Social Security to which he was a party . . . may obtain a review of such decision.

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. . . Such action shall be brought in the district court of the United States . . . .” Pursuant to 42 U.S.C.

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§ 1383(c)(3), “the final determination of the Commissioner of Social Security after a hearing . . . shall

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be subject to judicial review as provided in § 405(g) . . . .” This court has jurisdiction under 42 U.S.C.

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§ 405(g) and 42 U.S.C. § 1383(c)(3).

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B.

Plaintiff’s Claims

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Plaintiff asserts that the Social Security’s ruling that Plaintiff “is not disabled and not entitled

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to benefits under Title II and Title XVI of the Social Security Act is not supported by substantial

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evidence and is contrary to the applicable laws and regulations.” (#1-1). Plaintiff also asserts that

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Plaintiff “is disabled and is entitled to benefits under [Title] II and [Title] XVI of the Social Security

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Act.” (#1-1). Accepting these allegations as true and construing them in the light most favorable to the

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Plaintiff, Plaintiff states a claim for relief that is plausible on its face. See Ashcroft, 556 U.S. at 662;

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Russell, 621 F.2d at 1037.

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Accordingly, and for good cause shown,

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IT IS ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis (#1) is GRANTED.

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IT IS FURTHER ORDERED that the Plaintiff is permitted to maintain the action to conclusion

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without the necessity of prepayment of any additional fees, costs, or security. This Order granting in

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forma pauperis status shall not extend to the issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file the complaint (#1-1), issue

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summons to the Defendants named in the complaint, deliver the same to the U.S. Marshal for service,

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and send blank copies of the USM-285 forms to the Plaintiff.

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IT IS FURTHER ORDERED that the Plaintiff shall have twenty (20) days to furnish to the U.S.

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Marshal the required USM-285 forms. Within twenty (20) days after Plaintiff receives copies of the

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completed USM-285 forms from the U.S. Marshal, Plaintiff must file a notice with the court identifying

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which Defendants were served and which were not served, if any. If the Plaintiff wishes to have the

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U.S. Marshal attempt service again on any unserved defendants, then a motion must be filed with the

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court identifying the unserved Defendants, specifying a more detailed name and address, and indicating

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whether some other manner of service should be used. Pursuant to the Federal Rules of Civil Procedure

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Rule 4(m), service must be accomplished within one hundred twenty (120) days from the date that the

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complaint was filed.

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IT IS FURTHER ORDERED that from this point forward, Plaintiff shall serve upon Defendants,

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or their attorney if they have retained one, a copy of every pleading, motion, or other document

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submitted for consideration by the court. Plaintiff shall include with the original paper submitted for

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filing a certificate stating the date that a true and correct copy of the document was mailed to the

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Defendants or their counsel. The court may disregard any paper received by a district judge, magistrate

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judge, or the Clerk which fails to include a certificate of service.

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DATED this 8th day of June, 2012.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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