Austin v. United States Social Security Administration
Filing
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ORDER Denying 1 Plaintiff's MOTION/APPLICATION for Leave to Proceed in forma pauperis without prejudice with leave to file an Amended Motion/Application and attached Complaint within 60 days. Amended Motion/Application deadline: 12/24/2012. Signed by Magistrate Judge Cam Ferenbach on 10/25/2012. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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KAREN D. BANKS,
2:12-cv-01620-RCJ-VCF
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Plaintiff,
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ORDER AND
REPORT & RECOMMENDATION
vs.
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UNITED STATES SOCIAL SECURITY
(Motion/Application to Proceed In Forma
Pauperis #1)
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ADMINISTRATION,
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Defendant.
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VINCINT T. AUSTIN,
2:12-cv-01621-GMN-VCF
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Plaintiff,
ORDER
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vs.
(Motion/Application to Proceed In Forma
Pauperis #1)
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UNITED STATES SOCIAL SECURITY
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ADMINISTRATION,
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Defendant.
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Before the court are the matters of Banks v. United States Social Security Administration (Case
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No. 2:12-cv-01620-RCJ-VCF) and Austin v. United States Social Security Administration (Case No.
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2:12-cv-01621-GMN-VCF). The court addresses the two actions together, as pro se plaintiff Karen D.
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Banks filed and drafted the complaints (#1-1)1 , which are identical, on behalf of herself and her son
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plaintiff Vincint T. Austin. Also before the court are the plaintiffs’ Motions/Applications to Proceed In
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Forma Pauperis (#1)and Complaints (#1-1).
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Docket entries refer to documents in both 2:12-cv-01620-RCJ-VCF and 2:12-cv-01621-GMN-VCF, unless otherwise
specified
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I.
Motion/Application (#1)
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A.
Karen D. Banks (Case No. 2:12-cv-01620-RCJ-VCF)
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Plaintiff Karen D. Banks filed her motion/application to proceed in forma pauperis on
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September 14, 2012. (#1). Plaintiff asserts that she is employed at Clark County Nevada, 500 Grand
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Central Pkwy, Las Vegas, Nevada, and has a gross income of $3,100 (net $2,900) a month. Id. Plaintiff
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filled out the application to proceed in forma pauperis that is used for prisoners, so there is not a section
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asking for monthly expenses. Id. Plaintiff asserts that she does not have money in either a checking or
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savings account, and that her son Vincint and husband Keith are 100% dependent upon her. Id. During
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the hearing, plaintiff Banks represented, under oath, that her monthly expenses include $1,000 in rent,
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$900 in bills, and $500 in food, clothing, etc.
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Accordingly, plaintiff Banks’ request to proceed in forma pauperis is granted pursuant to §
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1915(a).
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B.
Vincint T. Austin (Case No. 2:12-cv-01621-GMN-VCF)
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In the action naming Vincint T. Austin as the plaintiff, Mrs. Banks filed the identical application
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to proceed in forma pauperis that she filed for herself above, providing her personal financial
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information and not her son’s. (#1). Pursuant to 28 U.S.C. § 1914(a), a filing fee of $350.00 is required
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to commence a civil action in federal district court. The court may authorize the commencement of an
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action without prepayment of fees and costs or security therefor, by a person who submits an affidavit
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that includes a statement showing the person is unable to pay such costs. 28 U.S.C. § 1915(a)(1). As
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Vincint T. Austin is the plaintiff in this action, the application must be sworn to by him and must
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contain his financial information demonstrating that he is unable to pay the costs of commencing the
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action. Id; See Williams v. Pierce County Board of Commissioners, et al, 267 F.2d 866 (9th Cir. 1959).
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Plaintiff Austin’s application to proceed in forma pauperis (#1) is denied without prejudice, with leave
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to re-file an application containing his personal financial information.
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II.
Screening Plaintiff Banks’ 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 if
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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or
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seeks monetary relief from a defendant who is immune from such relief. § 1915(e)(2). “To survive a
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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, 129 S.Ct. 1937, 1949 (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). Allegations of a
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pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Haines v.
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Kerner, 404 U.S. 519, 520 (1972) (per curiam). When a court dismisses a complaint under § 1915(e),
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the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,
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unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment.
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See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 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, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The presence or absence of
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federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v.
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Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 963 L.Ed.2d. 318 (1987). Under the well-pleaded
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complaint rule, “federal jurisdiction exists only when a federal question is presented on the face of the
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plaintiff’s properly pleaded complaint.” Id.
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B.
Plaintiff’s Complaint (#1-1)
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Plaintiff Banks prepared the complaint on the civil rights complaint form provided by the court’s
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website and filed identical complaints in both actions.
(#1-1).
The plaintiff in Case No.
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2:12-cv-01621-GMN-VCF is stated as “Karen Banks for Vincint T. Austin.” (#1-1). Plaintiff Banks
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names the United States Social Security Administration as the defendant in both actions, and alleges
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claims for (1) civil rights violations under 42 U.S.C. § 1983 because of their race, and (2) Social
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Security Act violations. Id. Within the complaints, plaintiff Banks asserts count one against the Social
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Security Administrative Law Judge that presided over her case, and count two against Jeffrey A. Pisaro,
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the S.S.A. appeals officer. Id.
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1.
Claims
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Plaintiff Banks asserts that her son Vincint was deemed disabled when he was in kindergarten
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and has been receiving Social Security benefits since then. (#1-1). The Social Security benefits were
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cut when Vincint turned 18 years old. Id. Vincint is 22 years old now and allegedly still disabled. Id.
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Plaintiff Banks asserts that the Administrative Law Judge decided that they (plaintiff Banks and her
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husband) were “not cooperative with disclosing information from Harmony Health Care regarding
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Vincint but, this [is] not true.” Id. Plaintiff Banks explains what allegedly occurred at that level of
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review, and states that she “would like Social Security to allow [her] more time to have Vincint
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completely evaluated because Vincint has been disabled from birth and that kind of disability does not
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go away.” Id. She alleges that her family was “treated adversely by Social Security due to [their] race
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which is African American.” Id.
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Plaintiff Banks also asserts that the Administrative Law Judge “assumed [they] were not
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cooperative because [they] did not sign a release for Vincint’s medical records,” that the appeals council
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agreed with the decision “without even reviewing the records,” and that her family was “assumed to not
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be cooperative because of [their] race.” Id. Plaintiff states that “[b]y reading and reviewing the Social
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Security Act, [she] discovered that [their] rights have been violated and the decision to stop his benefits
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[was] not based on the items written in that Act.” Id.
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Plaintiff seeks to have Vincint’s Social Security benefits restored, to be compensated for the
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violations of the Social Security Act, and to be compensated for the Civil Rights violations because of
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their race. Id.
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a.
Separate Actions/Jurisdiction
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In addition to alleging Civil Rights violations, plaintiffs’ complaints appear to be appeals from
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the Social Security Administrative Law Judge’s decision. (#1-1). In a document attached to the
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complaints, titled “Violation of Civil Rights U.S. Code 42 U.S.C. § 1983,” plaintiff Banks asserts that
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her son Vincint received a Notice of Appeals Council Action from the SSA post marked July 30, 2012,
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and that since this complaint was filed on September 14, 2012, she was filing the complaint “within the
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60 day time frame that is allowed.” Id.
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This court has jurisdiction over Civil Rights claims brought under 42 U.S.C. § 1983 and Social
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Security Appeals. See 28 U.S.C. § 1331; 42 U.S.C. §§ 401-433, 1381-82c. However, if a plaintiff
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intends to appeal the Social Security Commissioner’s decision, he/she must name the current
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Commissioner Michael J. Astrue as the defendant. Pursuant to 20 C.F.R. 422.210(d), where a civil
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action is instituted seeking judicial review of a decision by the Commissioner, “the person holding the
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Office of the Commissioner shall, in his official capacity, be the proper defendant,” and according to
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http://www.ssa.gov/pressoffice/factsheets/astrue.htm,
the current commissioner is Michael J. Astrue.
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If either plaintiff seeks redress for Civil Rights violations against the individuals, a separate
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complaint should be filed, as Social Security Appeals are handled by the court in a different manner and
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do not involve discovery and motions that are permitted in normal civil actions, such as motions to
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dismiss and/or for summary judgment as in normal civil matters.
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b.
Pro Se Status
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In the complaints, plaintiff Banks asserts civil rights violations under 42 U.S.C § 1983 for unfair
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treatment of her family because of their race and is appealing the Social Security’s denial of benefits for
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her son. Nothing in the record indicates that plaintiffs have retained an attorney, and plaintiffs are
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proceeding pro se. Plaintiff Banks purports to represent her son in Case No. 12-cv-1621, as she states
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that the plaintiff is ”Karen Banks for Vincint T. Austin.” (#1-1).
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The Ninth Circuit has held that “constitutional claims are personal and cannot be asserted
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vicariously.” Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997)(citing United States v.
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Mitchell, 915 F.2d 521, 526 n.8 (9th Cir. 1990). Although a plaintiff may appear pro se on his or her
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own behalf, an individual “has no authority to appear as an attorney for others than himself.” Id.
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(quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). With regard to
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parents representing the interests of their children, the Ninth Circuit agrees with the Third Circuit and
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others that have addressed the issue, and finds that “it is not in the best interest of minors or
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incompetents that they be represented by non-attorneys. Id. (quoting Osei-Afriyie v. Medical College,
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937 F.2d 876, 882–83 (3d Cir. 1991).
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The issue of whether a “parent can bring a pro se lawsuit on behalf of a minor falls squarely
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within the ambit of the principles that militate against allowing non-lawyers to represent others in
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court.” Id. at 877 (internal quotations and citations omitted). Specifically relevant to this action, courts
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have held that a parent’s claims “alleging child abuse or seeking damages suffered by the children must”
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be dismissed if the parent is purporting to represent the child in a pro se capacity. Delaney v. Souther3
Wyatt, 2001 WL 34041896 *1 (D. Or. Jul 11, 2001).
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C.
Discussion
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In Banks v. United States Social Security Administration (Case No. 2:12-cv-01620-RCJ-VCF),
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which was filed by Karen Banks, the court recommends dismissing the complaint (#1-1), without
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prejudice, for plaintiff to amend her complaint to allege claims of civil rights violations she allegedly
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suffered and to omit claims relating to the Social Security Appeal. See Johns, 114 F.3d at 876.
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In Austin v. United States Social Security Administration (Case No. 2:12-cv-01621-GMN-VCF),
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filed by Karen Banks on behalf of Vincint T. Austin, it is clear that based on Ninth Circuit precedent,
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plaintiff Banks cannot appear pro se on behalf of her son plaintiff Austin, and that plaintiff Austin must
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retain counsel.
See Johns, 114 F.3d at 877.
As the court is denying plaintiff Austin’s
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motion/application to proceed in forma pauperis, the court does not screen his complaint (#1-1), but has
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outlined its concerns above as plaintiff is proceeding pro se. 28 U.S.C. § 1915(e); See Haines, 404 U.S.
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at 520. The court advises plaintiff Austin to (1) either retain counsel2 or proceed pro se on his own
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behalf, (2) file a motion to proceed in forma pauperis, signed by him, containing his personal financial
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information, and (3) re-file his complaint omitting claims of civil rights violations. Id. If plaintiff
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Austin re-files his complaint (#1-1), he is advised to file the Social Security appeal under this case
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number, as the initial filing was timely, and that he must amend the caption of this action to read Vincint
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T. Austin v. Michael J. Astrue, Commissioner of Social Security. 20 C.F.R. 422.210(d). If the attorney,
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on behalf of plaintiff Vincint Austin, or if plaintiff Austin appearing pro se, desires to file a civil rights
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complaint, it should be filed as a separate action.
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Accordingly and for good cause shown,
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There are several organizations in Nevada to aid in finding an attorney and/or representing yourself in legal matters: (1)
Legal Aid Center http://www.lacsn.org/ or call (702) 386-1070; (2) State Bar of Nevada's "Lawyer Referral & Information
Service" at http://www.nvbar.org/ or (702) 382-0504; and (3) Federal Court "Ask A Lawyer Program," which will hold
future sessions on a quarterly basis (for upcoming dates visit www.lacsn.org/federal or call (702) 386-1070).
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IT IS ORDERED that in Case No. 2:12-cv-01620-RCJ-VCF, plaintiff Karen D. Banks’
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Motion/Application To Proceed In Forma Pauperis (#1) is GRANTED.
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IT IS FURTHER ORDERED that in Case No. 2:12-cv-01621-GMN-VCF, plaintiff Vincint T.
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Austin’s Motion/Application To Proceed In Forma Pauperis (#1) is DENIED without prejudice with
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leave to file an Amended Motion/Application and attached Complaint on his own behalf within sixty
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(60) days from the date of this order.
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RECOMMENDATION
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IT IS HEREBY RECOMMENDED that in Case No. 2:12-cv-01620-RCJ-VCF, the Clerk of
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Court be ordered to file plaintiff Karen D. Banks’ complaint (#1-1).
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IT IS FURTHER RECOMMENDED that in Case No. 2:12-cv-01620-RCJ-VCF, plaintiff Karen
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D. Banks’ complaint (#1-1) be dismissed without prejudice.
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IT IS FURTHER RECOMMENDED that plaintiff Banks, if she chooses to do so, be permitted
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to file an amended complaint within sixty (60) days from the date the clerk mails the plaintiff the court’s
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order dismissing the complaint, or the case may be dismissed with prejudice. Plaintiff is advised that
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under Local Rule LR 15-1 any amended complaint filed must be complete in itself without reference to
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prior filings. Thus, any allegations, parties, or requests for relief from prior papers that are not carried
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forward in the amended complaint no longer will be before the court.
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NOTICE
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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in
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writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held
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that the courts of appeal may determine that an appeal has been waived due to the failure to file
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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also
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held that (1) failure to file objections within the specified time and (2) failure to properly address and
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brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual
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issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt
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v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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DATED this 25th day of October, 2012.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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