Nelson v. Colvin

Filing 6

ORDER. IT IS ORDERED that 1 Plaintiff's application to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff's complaint 2 -1. IT IS FURTHER ORDERED that the complaint 2 -1 is DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. If Plaintiff chooses to file an amended complaint, Plaintiff must file the amended complaint by 6/22/17. Signed by Magistrate Judge Carl W. Hoffman on 5/23/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DESIREE NELSON,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

Case No. 2:16-cv-02402-JCM-CWH
ORDER

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Presently before the court is Plaintiff Desiree Nelson’s application for leave to proceed in forma

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pauperis (ECF Nos. 1), filed on October 14, 2016. Plaintiff filed an amended application to proceed in

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forma pauperis (ECF No. 2) on October 17, 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).
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.

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

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judicial review of the Commissioner’s decision. Although Plaintiff states that she seeks review of an

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adverse decision that has become final and that she has exhausted her administrative remedies, the

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complaint does not provide the date the notice of final decision was mailed to her. The court therefore

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cannot determine if this lawsuit for judicial review is timely. Accordingly, the court will dismiss

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

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III.

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Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma pauperis (ECF

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

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permitted to maintain this action to conclusion without the necessity of prepayment of any additional

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fees or costs or the giving of a security for fees or costs. This order granting leave to proceed in forma

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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. 2-1).

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IT IS FURTHER ORDERED that the complaint (ECF No. 2-1) 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 by June 22, 2017.

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Failure to comply with this order may result in a recommendation that this action be dismissed.

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Dated: May 23, 2017

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

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