Washington v. Social Security Administration

Filing 2

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the complaint but shall not issue summons. Amended Complaint deadline: 2/5/2015. Signed by Magistrate Judge Peggy A. Leen on 1/5/2015. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

ETHEL L. WASHINGTON,

8

Plaintiff,

9
10

Case No. 2:14-cv-01552-APG-PAL

v.

ORDER
(IFP App – Dkt. #1)

SOCIAL SECURITY ADMINISTRATION,

11

Defendant.

12
13

Plaintiff Ethel L. Washington is proceeding in this action pro se. She has requested authority

14

pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and she submitted a complaint. This

15

matter was referred to the undersigned pursuant to the provisions of

16

28 U.S.C. § 636(b)(1)(A) and (B) and Local Rules IB 1-3, 1-4, and 1-9.

17

I.

In Forma Pauperis Application (Dkt. #1).

18

Plaintiff has submitted the affidavit required by § 1915(a) showing that she is unable to

19

prepay fees and costs or give security for them. Accordingly, her request to proceed in forma

20

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

21

complaint.

22

II.

Screening the Complaint

23

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

24

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

25

legally Afrivolous or malicious,@ fails to state a claim upon which relief may be granted, or seeks

26

monetary relief from a defendant who is immune from such relief. 28 U.S.C. ' 1915(e)(2). When a

27

court dismisses a complaint under ' 1915(a), the plaintiff should be given leave to amend the

28

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

1

that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103,

2

1106 (9th Cir. 1995).

3

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

4

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

5

essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

6

719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the

7

claim showing that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v.

8

Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations,

9

it demands Amore than labels and conclusions@ or a Aformulaic recitation of the elements of a cause of

10

action.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286

11

(1986)). The court must accept as true all well-pled factual allegations contained in the complaint,

12

but the same requirement does not apply to legal conclusions. Id. Mere recitals of the elements of a

13

cause of action, supported only by conclusory allegations, do not suffice. Id. at 679-80. Secondly,

14

where the claims in the complaint have not crossed the line from plausible to conceivable, the

15

complaint should be dismissed. Twombly, 550 U.S. at 570.

16

Plaintiff’s complaint attempts to state a claim against the Social Security Administration

17

(“SSA”), seeking reinstatement of Supplemental Security Income and Social Security retirement

18

benefits and $1,000,000 for suffering. The complaint attaches a Statement of Claimant or Other

19

Person Plaintiff sent to the SSA. Plaintiff contends that the SSA has been reducing her benefit

20

payments, claiming Washington owes SSA $13,000.00. Washington disputes that she owes SSA

21

money, but argues that even if she did, SSA should not take all of benefits. She requests the court

22

award her $1,500.00 per month and declare that she does not owe SSA a debt. Additionally, she

23

seeks an award of one million dollars to compensate her for “being riped [sic] off for so many years

24

by Social Security.”

25

Plaintiff’s Complaint does not state a claim upon which relief can be granted because

26

Plaintiff has not set forth any basis for the court’s subject matter jurisdiction. 42 U.S.C. §§ 405(g)

27

and 405(h) give federal district courts jurisdiction to review a final decisions by the SSA. A final

28

decision is one in which: (a) a claimant has presented her claim to the Commissioner; and (b) the

-2-

1

claimant has exhausted her administrative remedies. See Kaiser v. Blue Cross of Cal., 347 F.3d

2

1107, 1115 (9th Cir. 2003) (citing Heckler v. Ringer, 466 U.S. 602, 605-06 (1984)); Kildare v. Saenz,

3

325 F.3d 1078, 1082 (9th Cir. 2003) (citing Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993). The

4

presentment requirement is jurisdictional, and it cannot be waived by the Commissioner or the

5

courts. Kaiser, 347 F.3d at 1115 (internal citation omitted). The exhaustion requirement is not

6

jurisdictional, but it can only be waived in certain limited circumstances. Id.; Kildare, 325 F.3d at

7

1082 (internal citation omitted).

8

Commissioner of SSA or that she exhausted her administrative remedies. Additionally, she has not

9

cited any basis to waive the exhaustion requirement. In fact, Plaintiff has not alleged any facts,

10

including when the alleged reduction in benefits occurred, to support her claim. Accordingly, she

11

has not stated a claim upon which relief can be granted, and her complaint will be dismissed with

12

leave to amend.

Plaintiff has not alleged that she presented her claim to the

13

If Plaintiff elects to proceed in this action by filing an amended complaint, she must set forth

14

the factual basis for her claim, including when her benefits were reduced, when she presented her

15

claim, and how she exhausted her administrative remedies. Additionally, Plaintiff is advised that the

16

proper defendant is the Commissioner of SSA, not the SSA itself. As a general rule, no federal

17

agency can be sued unless Congress has expressly revoked that agency’s sovereign immunity. See

18

Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993). In other words, the

19

court does not have jurisdiction to award relief against a federal agency unless the relief is expressly

20

authorized by statute. See United States v. King, 395 U.S. 1, 4 (1969) (internal citation omitted).

21

Here, § 405(g) waives the SSA’s sovereign immunity as to final decisions of the Commissioner so

22

long as the civil action is brought within sixty days of the Commissioner’s decision. See Bowen v.

23

City of New York, 476 U.S. 467, 479 (1986). The proper defendant in an action brought pursuant to §

24

405(g) is the Commissioner of SSA. See Butler v. Apfel, 144 F.3d 622, 624 (9th Cir. 1998).

25

Finally, Plaintiff is informed that the court cannot refer to a prior pleading in order to make

26

an amended complaint complete. Local Rule 15-1 requires that an amended complaint be complete

27

in itself without reference to any prior pleading. This is because, as a general rule, an amended

28

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

-3-

1

Once plaintiff files an amended complaint, the original pleading no longer serves any function in

2

the case. Therefore, in an amended complaint, as in an original complaint, each claim and the

3

involvement of each defendant must be sufficiently alleged.

4

Based on the foregoing,

5

IT IS ORDERED that:

6

1.

7
8

Plaintiff=s request to proceed in forma pauperis is GRANTED. Plaintiff shall not
be required to pay the filing fee of four hundred dollars ($400.00).

2.

Plaintiff is permitted to maintain this action to conclusion without the necessity of

9

prepayment of any additional fees or costs or the giving of a security therefor. This

10

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

11

subpoenas at government expense.

12

3.

The Clerk of the Court shall file the complaint but shall not issue summons.

13

4.

Plaintiff shall have until February 5, 2015, to file her amended complaint, if she

14

believes she can correct the noted deficiencies. The amended complaint must be a

15

complete document in and of itself, and will supersede the original complaint in its

16

entirety. Any allegations, parties, or requests for relief from prior papers that are not

17

carried forward in the amended complaint will no longer be before the court.

18

.

Plaintiff shall clearly title the amended complaint as such by placing the words

19

“FIRST AMENDED COMPLAINT” immediately above the case number, 2:14-cv-

20

01552-APG-PAL on page 1 in the caption. Plaintiff is expressly cautioned that if she

21

does not timely file an amended complaint in compliance with this order, this case

22

may be immediately dismissed.

23

Dated this 5th day of January, 2015.

24
____________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

25
26
27
28

-4-