Cobarruvia v. Social Security Administration Commissioner

Filing 2

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint. The Complaint is DISMISSED, with leave to amend by 9/8/2014. Signed by Magistrate Judge Nancy J. Koppe on 8/4/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LOURDES COBARRUVIA,
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Plaintiff,
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vs.
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SOCIAL SECURITY ADMINISTRATION
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COMMISIONER,
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Defendant.
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__________________________________________)

Case No. 2:14-cv-01184-JCM-NJK
ORDER
(IFP App - Dkt. #1)

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Plaintiff Lourdes Cobarruvia has requested authority pursuant to 28 U.S.C. § 1915 to proceed in

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forma pauperis, (Dkt. #1), and submitted a Complaint (Dkt. #1-1).

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I.

Application to Proceed In Forma Pauperis

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Pursuant to 28 U.S.C. § 1915(a), a person seeking to proceed in forma paurperis must submit an

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application indicating she is unable to prepay fees and costs or give security for them. The litigant need not

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“be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. du Pont De Nemours & Co., 335

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U.S. 331, 339 (1948).

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Plaintiff Lourdes Cobarruvia has submitted the affidavit required by 28 U.S.C. § 1915(a). In her

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application, Plaintiff indicates she is unemployed. Docket No. 1, at 1. She further states that she receives

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Temporary Assistance for Needy Families (TANF) assistance, as well as food stamps, in the total amount

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of $659 per month. Id. She has $16.00 on an EBT card, and no automobile, real estate, or other assets.

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Id., at 2. She pays rent of $150 per month to her roommate, and supports her 17-year old son with rent and

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food stamps. Id. Based on the information in Plaintiff’s application, the Court finds that it is unlikely that

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Plaintiff would be able to pay the $400 filing fee. Accordingly, the request to proceed in forma pauperis

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will be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s complaint.

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....

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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 complaint

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pursuant to § 1915(a). Federal courts are given the authority to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a

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complaint under 28 U.S.C. § 1915, 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 deficiencies

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could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for

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failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling

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on a question of law. North Star Intern. v. Arizona Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983). In

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considering whether Plaintiff has stated a claim upon which relief can be granted, all material allegations

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in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff.

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Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro se complaint are held to less

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stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972)

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(per curiam); see also Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011).

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Plaintiff’s Complaint appears to challenge a decision by the Social Security Administration (“SSA”)

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denying her disability insurance benefits; however, she inappropriately used the Court’s form complaint

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for an action under Title 42 United States Code, Section 1983. Docket No. 1-1. Before Plaintiff can sue

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the SSA in federal court, she must exhaust her administrative remedies. 42 U.S.C. § 405(g); Bass v. Social

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Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curium) (“Section 405(g) provides that a civil action

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may be brought only after (1) the claimant has been party to a hearing held by the Secretary, and (2) the

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Secretary has made a final decision on the claim”). Generally, if the SSA denies a claimant’s application

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for disability benefits, she can request reconsideration of the decision. If the claim is denied at the

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reconsideration level, a claimant may request a hearing before an Administrative Law Judge (“ALJ”). If

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the ALJ denies the claim, a claimant may request review of the decision by the Appeals Council. If the

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Appeals Council declines to review the ALJ’s decision, a claimant may then request review by the United

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States District Court. See generally 20 C.F.R §§ 404, 416. Here, it appears as if Plaintiff exhausted her
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administrative remedies, as she attached a Notice of Appeals Council Action from the Social Security

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Administration, informing her that her request for review of the Administrative Law Judge’s adverse

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decision has been denied. Docket No. 1-1, at 10-12.

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Once Plaintiff has exhausted her administrative remedies, she can obtain review of an SSA decision

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denying benefits by commencing a civil action within sixty days after notice of a final decision. See

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generally 20 C.F.R §§ 404, 416. An action for judicial review of a determination by the SSA must be

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brought in a District Court of the United States for the judicial district in which the Plaintiff resides. Id.

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Although Plaintiff filed her Complaint on the incorrect form, it is clear to the Court that Plaintiff intended

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to file a request for review of the SSA adverse ruling. Therefore, the Court construes Plaintiff’s filing as

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an attempt to request judicial review of the SSA ruling, pursuant to 42 U.S.C. § 405(g). Plaintiff timely

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filed her Complaint within 60 days of the date she exhausted her administrative remedies; however, she

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filed her Complaint on the incorrect form and failed to properly state a claim.

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In addition to alleging the exhaustion of administrative remedies, the Complaint should state the

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nature of Plaintiff’s disability, when Plaintiff claims she became disabled, and when and how she exhausted

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her administrative remedies. The Complaint should also contain a plain, short, and concise statement

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identifying the nature of Plaintiff’s disagreement with the determination made by the SSA and show that

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Plaintiff is entitled to relief. A district court can affirm, modify, reverse, or remand a decision if Plaintiff

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has exhausted her administrative remedies and timely filed a civil action. However, judicial review of the

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Commissioner’s decision to deny benefits is limited to determining: (a) whether there is substantial

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evidence in the record as a whole to support the findings of the Commissioner; and (b) whether the correct

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legal standards were applied. Morgan v. Commissioner of the Social Security Adm.,169 F.3d 595, 599 (9th

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Cir. 1999).

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Based on the foregoing,

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IT IS ORDERED that:

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1.

Plaintiff’s request to proceed in forma pauperis is GRANTED with the caveat that the fees

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shall be paid if recovery is made. At this time, Plaintiff shall not be required to pre-pay the

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filing fee of four hundred dollars ($400.00).

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2.

Plaintiff is permitted to maintain the action to conclusion without the necessity of
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prepayment of any additional fees or costs or the giving of a security therefor. The Order

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granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas

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at government expense.

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3.

The Clerk of Court shall file the Complaint.

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4.

The Complaint is DISMISSED, with leave to amend. Plaintiff will have until September

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8, 2014, to file an Amended Complaint, if Plaintiff believes she can correct the noted

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deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the

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Court cannot refer to a prior pleading (i.e., the original Complaint) in order to make the

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Amended Complaint complete. This is because, as a general rule, an Amended Complaint

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supersedes the original Complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Local Rule 15-1 requires that an Amended Complaint be complete in itself without

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reference to any prior pleading. Once a plaintiff files an Amended Complaint, the original

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Complaint no longer serves any function in the case. Therefore, in an Amended Complaint,

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as in an original Complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. Failure to comply with this Order will result in the recommended

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dismissal of this case, without prejudice.

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Dated this 4th day of August, 2014.

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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