Herrera v. Social Security Administration

Filing 3

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis; Amended Complaint deadline: 30 days from date of this Order. Signed by Magistrate Judge Carl W. Hoffman on 10/17/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SEBASTIAN NORIEGA HERRERA,
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Plaintiff,
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vs.
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SOCIAL SECURITY ADMINISTRATION, )
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Defendant.
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____________________________________)

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Case No. 2:16-cv-01933-KJD-CWH
2:13-cv-00347-GMN-CWH
ORDER

Presently before the court is Plaintiff Sebastian Noriega Herrera’s Application for Leave to

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Proceed In Forma Pauperis (ECF No. 1), filed on August 15, 2016.

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I.

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In Forma Pauperis Application
Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to

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

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will be granted.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must screen the complaint under

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28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and

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dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted, or seek

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

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for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To

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survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court

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liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom

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v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of material fact

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are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v.

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Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard

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under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than

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mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic

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recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint’s

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deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend

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the complaint with notice regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995).

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Plaintiff’s complaint challenges a decision by the Social Security Administration (“SSA”)

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denying benefits. Before filing suit, a plaintiff must exhaust administrative remedies. See 42 U.S.C.

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§ 405(g); see also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (“Section

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405(g) provides that a civil action may be brought only after (1) the claimant has been party to a hearing

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held by the Secretary, and (2) the Secretary has made a final decision on the claim”). Generally, if the

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SSA denies a claimant’s application for disability benefits, he can request reconsideration of the

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decision. If the claim is denied at the reconsideration level, a claimant may request a hearing before an

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Administrative Law Judge (“ALJ”). If the ALJ denies the claim, a claimant may request review of the

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decision by the Appeals Council. If the Appeals Council declines to review the ALJ’s decision, a

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claimant may then request judicial review. See generally 20 C.F.R. §§ 404, 416.

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Once a plaintiff has exhausted administrative remedies, he can obtain judicial review of an SSA

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decision denying benefits by filing suit within sixty days after notice of a final decision. 42 U.S.C.

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§ 405(g). An action for judicial review of a determination by the SSA must be brought “in the district

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court of the United States for the judicial district in which the plaintiff resides.” Id. The complaint

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should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and when and

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how he exhausted his administrative remedies. The complaint should also contain a plain, short, and

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concise statement identifying the nature of plaintiff’s disagreement with the SSA’s determination and
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show that plaintiff is entitled to relief. A district court can affirm, modify, reverse, or remand a decision

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if plaintiff has exhausted his administrative remedies and timely filed a civil action. However, judicial

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

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substantial evidence in the record as a whole to support the findings of the Commissioner; and

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(b) whether the correct legal standards were applied. Morgan v. Commissioner of the Social Security

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Adm., 169 F.3d 595, 599 (9th Cir. 1999).

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Here, the court finds that Plaintiff failed to allege sufficient facts in support of his action for

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judicial review of the Commissioner’s decision. Although Plaintiff states that he disagrees with SSA’s

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decision denying him benefits, he does not explain why he disagrees with the SSA’s determination or

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include any explanation of why he is entitled to relief. Without written factual allegations stating the

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reasons why Plaintiff challenges the SSA’s decision denying benefits, the court cannot evaluate whether

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Plaintiff’s complaint states a claim against the Commissioner of SSA. The court therefore will dismiss

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Plaintiff’s complaint without prejudice for the Plaintiff to file an amended complaint.

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If Plaintiff chooses to file an amended complaint, the document must be titled “Amended

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Complaint.” The amended complaint must state the nature of Plaintiff’s disability, when Plaintiff

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claims he became disabled, and when and how he exhausted his administrative remedies. The amended

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complaint also must contain a short and plain statement identifying the nature of Plaintiff’s

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disagreement with the determination made by the SSA and show that Plaintiff is entitled to relief.

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Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Plaintiff still must

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give the Commissioner of Social Security fair notice of the reasons Plaintiff is seeking review of the

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Commissioner’s decision.

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Additionally, Plaintiff is advised that if he files an amended complaint, the original complaint

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(ECF No. 1-1) no longer serves any function in this case. As such, the amended complaint must be

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complete in and of itself without reference to prior pleadings or other documents. The court cannot

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refer to a prior pleading or other documents to make Plaintiff’s amended complaint complete.

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IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma

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Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action.

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Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of any
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additional fees or costs or the giving of a security for fees or costs. This order granting leave to proceed

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in forma pauperis does not extend to the issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint (ECF
No. 1-1).

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IT IS FURTHER ORDERED that the Complaint (ECF No. 1-1) is DISMISSED without

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prejudice for failure to state a claim upon which relief can be granted, with leave to amend. If Plaintiff

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chooses to file an amended complaint, Plaintiff must file the amended complaint within 30 days from

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the date of this order. Failure to comply with this order may result in a recommendation that this action

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be dismissed.

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Dated: October 17, 2016

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________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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