Kemp v. Colvin

Filing 2

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is granted with the caveat that the fees shall be paid if recovery is made. The clerk shall file the complaint and serve the Commissioner of the Social Security Administration via certified mail. The clerk shall issued summons the the US Attorney for the District of Nevada and deliver to the US Marshal for service. Defendants shall have sixty (60) days from the date of service to file their answer or responsive pleading to Plaintiff's Complaint in this case. Signed by Magistrate Judge George Foley, Jr on 6/30/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN M. KEMP,

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Plaintiff,
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vs.
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CAROLY W. COLVIN, acting Commissioner
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of Social Security Administration,
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Defendant.
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__________________________________________)

Case No. 2:15-cv-00706-GMN-GWF
ORDER

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This matter comes before the Court on Plaintiff’s Motion to Proceed In Forma Pauperis

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(#1) filed on April 17, 2015. Plaintiff filed a Complaint for Judicial Review (#1-1) on April 17,

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2015.

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BACKGROUND
Plaintiff alleges a claim against the Social Security Administration, challenging its denial of

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social security benefits. Plaintiff alleges that at all time relevant to this action, he was disabled as

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defined by the Social Security Act. Plaintiff claims that the Social Security Commissioner, initially

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and upon reconsideration, denied his request for supplemental security income. Plaintiff states that

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he timely requested review of the ALJ’s decision with the Appeals Council, which was denied on

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January 21, 2015. Plaintiff applied for and received an extension of time on March 20, 2015.

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Plaintiff now seeks judicial review of that final agency decision.

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DISCUSSION

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I.

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Plaintiff filed this instant action and attached a financial affidavit to his application and

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Application to Proceed In Forma Pauperis

complaint as required by 28 U.S.C. § 1915(a). Having reviewed Plaintiff’s financial affidavit

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pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee.

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Therefore, Plaintiff's request to proceed in forma pauperis in federal court is granted.

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II.

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Plaintiff brings suit against the SSA alleging he was wrongfully denied social security

Complaint

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disability benefits. Federal courts only have jurisdiction to conduct judicial review of the SSA’s

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final decisions. See 42 U.S.C. § 405(g); see also Pacific Coast Medical Enterprises v. Harris, 633

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F.2d 123, 137 (9th Cir. 1980). Plaintiff appears to have fully exhausted his administrative remedies

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with the SSA. The Court will therefore allow Plaintiff’s complaint to proceed as a petition for

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judicial review of a final agency decision. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Proceed In Forma Pauperis (#1) is

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granted with the caveat that the fees shall be paid if recovery is made. At this time, Plaintiff shall

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not be required to pre-pay the full filing fee of four hundred dollars ($400).

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IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint (#1-1).

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IT IS FURTHER ORDERED that the Clerk of the Court shall serve the Commissioner of

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the Social Security Administration by sending a copy of summons and Complaint by certified mail

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to: (1) Office of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear

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Street, Suite 899, San Francisco, California 94105; and (2) the Attorney General of the United

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States, Department of Justice, 950 Pennsylvania Ave. NW, Washington DC 20530.

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IT IS FURTHER ORDERED that the Clerk of the Court shall issue summons to the

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United States Attorney for the District of Nevada, and deliver the summons and Complaint to the

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U.S. Marshal for service.

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IT IS FURTHER ORDERED that Defendants shall have sixty (60) days from the date of

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service to file their answer or responsive pleading to Plaintiff’s Complaint in this case.

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IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon Defendant, or

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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

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

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

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

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DATED this 30th day of June, 2015.

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GEORGE FOLEY, JR.
United States Magistrate Judge

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