Abd-Elmalek v. Jenkins

Filing 28

ORDER. IT IS ORDERED that, within 30 days of the date of this Order, Plaintiff is directed to file a written motion explaining that he has exhausted his appeal rights within the Social Security Administration. Signed by Magistrate Judge Elayna J. Youchah on 2/25/2020. (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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AMIR F. ABD-ELMALEK,

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Plaintiff,

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Case No. 2:16-CV-02509-APG-EJY
ORDER

v.
ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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Before the Court is a letter received from Plaintiff Amir F. Abd-Elmalek in which he states

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he does not understand what he must do to move his complaint against the Commissioner of Social

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Security forward. ECF No. 27. This letter shows a cc to Martin A. Muckleroy, an attorney licensed

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in the State of Nevada.

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Whether pro se or represented, plaintiffs must follow the Rules of Civil Procedure and must

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present to the Court the issues they seek the Court to decide. On November 3, 2016, the Court

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dismissed Plaintiff’s Complaint without prejudice, giving Plaintiff the opportunity to file an

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Amended Complaint that would state claims the Court could consider and ultimately rule upon. ECF

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No. 3. Plaintiff’s case was then dismissed on March 8, 2017 because Plaintiff did not file an

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Amended Complaint. ECF No. 6. On March 27, 2017, Plaintiff filed a Motion to Reconsider (ECF

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No. 8) and the Court reopened Plaintiff’s case on April 3, 2017 requiring Plaintiff to file an Amended

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Complaint by May 17, 2017. ECF No. 9.

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On May 1, 2017, Plaintiff filed an Amended Complaint. ECF No. 10. On May 7, 2019, the

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Court ordered the Amended Complaint to proceed and gave Plaintiff 60 days to serve the

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Commissioner. ECF No. 11. 1

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Amended Complaint on July 9, 2019. ECF No. 17. On October 22, 2019, the Court issued an Order

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stating motions were due by November 21, 2019. ECF No. 20. That Order explained that Plaintiff

Plaintiff served the Commissioner who answered Plaintiff’s

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The undersigned does not know what caused this delay.

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must file a Motion to Remand his case to the Social Security Administration if Plaintiff seeks the

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Administration to reconsider or reverse its ruling denying benefits. Id. The Order includes a

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description of what Plaintiff must do on pages 2 and 3, and gave Plaintiff 30 days to file his

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Motion. Id.

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Plaintiff did not file a Motion within 30 days of the Order or to date. Plaintiff continues to

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state he does not understand what he must do to move his case forward. The Court cannot act as

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Plaintiff’s advocate or provide step by step instructions regarding how to proceed on his case. Courts

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should not have to serve as advocates for pro se litigants. A statement explaining the deficiencies

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of a filing need not provide great detail or require district courts to act as legal advisors to pro se

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plaintiffs. For example, when dismissing a pro se complaint for failure to state a claim, district

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courts need draft only a few sentences explaining the problems with the filing. “The Supreme

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Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se

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litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (citing Boag v. MacDougall, 454

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U.S. 364, 365 (1982)). In practice, this means that pro se plaintiffs are ultimately held “to less

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stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520

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(1972). This does not mean, however, that a court can make the plaintiff’s case where he has failed

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to do so. Young v. Wachovia FSB, Case No. C11-0552, 2011 WL 3022301, at *1 (W.D. Wash. July

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22, 2011).

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Plaintiff was provided multiple opportunities to file a Motion to Remand his case for further

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consideration or reversal by the Commissioner of Social Security. Plaintiff has not done so. The

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Court appreciates that Plaintiff may not be a skilled advocate, but he has provided nothing by way

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of facts, law or discussion regarding alleged error by the Commissioner of Social Security upon

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which the Court can rule.

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Accordingly,

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IT IS HEREBY ORDERED that, within 30 days of the date of this Order, Plaintiff is directed to

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file a written motion explaining that he has exhausted his appeal rights within the Social Security

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Administration and, with reasonable particularity, detailing the alleged errors made by the

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Administrative Law Judge that decided his case thereby warranting reversal or remand. See ECF No.

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20. Failure to comply with this Order will result in a recommendation to dismiss Plaintiff’s case.

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DATED: February 25, 2020

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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