Grabowski v. Commission of Social Security

Filing 2

ORDER. IT IS ORDERED that 1 Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk of Court shall file the Complaint. The Complaint is DISMISSED with leave to amend. Plaintiff will have until August 12, 2016, to file an Amended Complaint. Signed by Magistrate Judge Nancy J. Koppe on 7/19/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SUSAN GRABOWSKI,

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Plaintiff(s),
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vs.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant(s).
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__________________________________________)

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Case No. 2:16-cv-01654-JAD-NJK
ORDER
(Docket No. 1)

Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. § 1915

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to proceed in forma pauperis, (Docket No. 1), and submitted a Complaint (Docket No. 1-1).

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I.

Application to Proceed In Forma Pauperis

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees and

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costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma pauperis will

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be granted pursuant to § 1915(a). The Court will now review Plaintiff’s Complaint.

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II.

Screening the Complaint

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Proceeding in forma pauperis is a privilege, not a right. E.g., Williams v. Field, 394 F.2d 329, 332

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(9th Cir. 1968). When a party seeks permission to pursue a civil case in forma papueris, courts will screen

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the complaint pursuant to federal statute. See 28 U.S.C. § 1915(e). In particular, the governing statute

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provides that courts shall dismiss a case at any time if it determines that, inter alia, it is frivolous or

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malicious, or fails to state a claim on which relief may be granted. See id. A central function of this

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screening process is to “discourage the filing of, and waste of judicial and private resources upon, baseless

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lawsuits that paying litigants generally do not initiate because of the cost of bringing suit.” Neitzke v.

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Williams, 490 U.S. 319, 327 (1989).

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In civil cases in which the plaintiff seeks to proceed in forma pauperis, courts require that the

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plaintiff comply with the robust authority that complaints must provide sufficient notice of the basis of the

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claims presented and state a claim for relief. See, e.g., Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

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2012). Complaints are subject to the pleading standards set out in Rule 8. Swierkiewicz v. Sorema N.A.,

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534 U.S. 506, 512 (2002). Although Rule 8 does not require detailed factual allegations, the complaint

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must set forth the grounds of the plaintiff’s entitlement to relief and may not rest on “labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). Courts must accept as true all well-pled factual allegations contained in the complaint,

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but the same requirement does not apply to legal conclusions. Id. at 679. Mere recitals of the elements of

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a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Moreover, where

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

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be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When a court dismisses a

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complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as

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to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not

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be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).1

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A complaint in a social security appeal is not exempt from the Section 1915(e) screening of in

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forma pauperis cases generally. Hoagland v. Astrue, 2012 WL 2521753, *1 (E.D. Cal. June 28, 2012)

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(screening is required “even if the plaintiff pursues an appeal of right, such as an appeal of the

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Commissioner’s denial of social security disability benefits”); see also Lopez v. Smith, 203 F.3d 1122, 1129

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(9th Cir. 2000) (en banc) (“section 1915(e) applies to all in forma pauperis complaints”). Moreover,

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although a complaint in a social security appeal may differ in some ways from other civil cases, it is also

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“not exempt from the general rules of civil pleading.” Hoagland, 2012 WL 2521753, at *2. With respect

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to social security appeals specifically, the undersigned and several other judges in this District have

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outlined some of the basic requirements for complaints to satisfy the Court’s screening. First, the plaintiff

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In cases in which the plaintiff is proceeding pro se, the Court liberally construes her pleadings.
Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se
pleadings is required after Twombly and Iqbal). As Plaintiff filed her Complaint pro se, the Court has
liberally construed her filing.
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must establish that she has exhausted her administrative remedies pursuant to 42 U.S.C. § 405(g), and that

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the civil action was commenced within sixty days after notice of a final decision. Second, the complaint

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must indicate the judicial district in which the plaintiff resides. Third, the complaint must state the nature

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of the plaintiff’s disability and when the plaintiff claims she became disabled. Fourth, the complaint must

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contain a plain, short, and concise statement identifying the nature of the plaintiff’s disagreement with the

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determination made by the Social Security Administration and show that the plaintiff is entitled to relief.

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See, e.g., Graves v. Colvin, 2015 WL 357121, *2 (D. Nev. Jan. 26, 2015) (collecting cases).

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In this case, Plaintiff fails to establish the first requirement. Civil actions requesting review of the

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Commissioner’s final decision must be commenced within 60 days. 42 U.S.C. § 405(g); see also Tate v.

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United States, 437 F.2d 88, 89 (9th Cir. 1971) (per curium) (affirming dismissal of action because it was

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filed two days late). As Plaintiff does not provide the date of the Commissioner’s final decision, her

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complaint fails to establish that this action was timely. Docket No. 1-1 at 2.

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III.

Conclusion

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Based on the foregoing, 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 August 12,

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2016, to file an Amended Complaint, if Plaintiff believes she can correct the noted

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deficiencies.

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Dated: July 19, 2016
________________________________________
NANCY J. KOPPE
United States Magistrate Judge
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