Johnson v. Colvin

Filing 2

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. Complaint deadline: 6/30/2014. Signed by Magistrate Judge Cam Ferenbach on 6/16/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GERRY DEAN JOHNSON,

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2:14–cv–00902-JAD-VCF

Plaintiff,

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vs.
ORDER

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

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Before the court is Plaintiff Gerry Dean Johnson’s Motion/Application to Proceed In Forma
Pauperis (#11).

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IN FORMA PAUPERIS APPLICATION

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Plaintiff Gerry Dean Johnson asserts in his application to proceed in forma pauperis that he is

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unemployed and has no take home wages, but that he receives a social security payment of $870.00 per

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month. (#1). Plaintiff also asserts that he has $20.00 in a checking or savings account, and that his

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regular monthly expenses are $945.60. (Id.) Accordingly, Plaintiff’s request to proceed in forma

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pauperis is granted pursuant to § 1915(a).

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LEGAL STANDARD

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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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Parenthetical citations refer to the court’s docket.

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seeks monetary relief from a defendant who is immune from such relief. See § 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 to

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

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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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DISCUSSION

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A claim cannot proceed without a formal complaint. Fed. R. Civ. P. 3. Here, Plaintiff failed to

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file a complaint. In the interest of a speedy proceeding, Plaintiff is ordered to file a complaint with the

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Clerk of Court within fourteen (14) days. See Fed. R. Civ. P. 1 (requiring the court to secure the speedy

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determination of every action). Failure to file a valid complaint within the specified time will result in a

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recommendation by the court to dismiss Plaintiff’s action.

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Plaintiff is advised that his complaint must contain (1) “a short and plain statement of the

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grounds for the court's jurisdiction”, (2) “a short and plain statement of the claim showing that the

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pleader is entitled to relief”; and (3) “a demand for the relief sought.” Fed. R. Civ. P. 8. Additionally,

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the Social Security Act only provides for federal court review of final decisions of the Commissioner.

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See 42 U.S.C. § 405(g). Therefore, Plaintiff’s complaint must be timely, must allege that he is disabled,

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and must arise from a final decision by the Commissioner of Social Security Administration. In such

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circumstances, this court has jurisdiction to hear Plaintiff’s appeal of the Commissioner’s denial of his

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application for Disability Insurance Benefits under Title II of the Social Security Act. See 42 U.S.C. §§

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401-433.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Plaintiff Gerry Dean Johnson’s Application to Proceed In Forma Pauperis

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(#1) is GRANTED.

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IT IS FURTHER ORDERED that the Plaintiff Gerry Dean Johnson is permitted to maintain the

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action to conclusion without the necessity of prepayment of any additional fees, costs, or security. This

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Order granting in forma pauperis status shall not extend to the issuance of subpoenas at government

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expense.
IT IS FURTHER ORDERED that Plaintiff Gerry Dean Johnson file a complaint with the Clerk

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of Court in accordance with this order by June 30, 2014.

Failure to do so will result in a

recommendation by the court to dismiss Plaintiff’s action.
NOTICE

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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues
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waives the right to appeal the District Court's order and/or appeal factual issues from the order of the
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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.
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Dist., 708 F.2d 452, 454 (9th Cir. 1983).
Pursuant to Local Special Rule 2-2, the Plaintiff must immediately file written notification with
the court of any change of address. The notification must include proof of service upon each opposing
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party of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action.
See LSR 2-2 (emphasis added).
DATED this 16th day of June, 2014.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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