Abd-Elmalek v. Jenkins

Filing 3

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pre-pay the full filing fee of $400.00. Plaintiff's 1 -1 Complaint is dismissed without prejudice with leave to amend. Plaintiff has until 12/2/2016 to file an Amended Complaint correcting the noted deficiencies. Signed by Magistrate Judge George Foley, Jr on 11/3/2016. (Copies have been distributed pursuant to the NEF - SLD)

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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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vs.
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BARRY H. JENKINS,
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Defendant,
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__________________________________________)

Case No. 2:16-cv-02509-APG-GWF
ORDER
Plaintiff’s Application to Proceed In
Forma Pauperis (#1)

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This matter is before the Court on Plaintiff’s Application to Proceed In Forma Pauperis
(ECF No. 1), filed on October 28, 2016.

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BACKGROUND
Plaintiff brings suit for review of his social security case. He claims that Administrative Law

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Judge (“ALJ”) Barry Jenkin’s disability determination, made on behalf of the Commissioner of

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Social Security, was based on legal error. Plaintiff states that ALJ Jenkins failed to consider all of

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the medical evidence in the record that proves Plaintiff is entitled to disability benefits. Plaintiff

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now seeks retroactive disability benefits from the date of his initial disability.

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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

Application to Proceed In Forma Pauperis

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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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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

Screening the Complaint

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief

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may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is immune

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from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for

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failure to state a claim upon which relief may be granted “if it appears beyond a doubt that the

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plaintiff can prove no set of facts in support of his claims that would entitle him to relief.” Buckey v.

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Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is

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premised on a nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S.

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319, 327–28 (1989). When a court dismisses a complaint under § 1915(e), the plaintiff should be

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given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear

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from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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III.

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Plaintiff asks this Court to review his social security application. A disagreement with the

Complaint

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Social Security Administration’s (“SSA”) final decision may be grounds for this Court to review the

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case. Federal courts only have jurisdiction to conduct judicial review of the SSA’s final decisions.

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See 42 U.S.C. § 405(g); see also Pacific Coast Medical Enterprises v. Harris, 633 F.2d 123, 137

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(9th Cir. 1980). It is unclear that Plaintiff has exhausted all of his administrative remedies with the

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SSA. Plaintiff’s Complaint asserts that the ALJ failed to review certain medical evidence and

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explained how other medical evidence was erroneous. Complaint (ECF No. 1-1). However, the

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Complaint does not clearly detail whether Plaintiff properly appealed the ALJ’s decision to the

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Appeals Counsel and, if so, whether his request for review was denied thereby making the ALJ’s

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denial of benefits a final decision for purposes of judicial review. Therefore, Plaintiff does not give

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the Court the necessary information to determine if it has jurisdiction over this matter. As a result,

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the Court will dismiss this Complaint with leave to amend, to provide Plaintiff another opportunity

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to give the Court the necessary information. In addition, Plaintiff has sued the wrong person. A

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complaint that seeks review of a social security determination is properly brought against the acting

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Commissioner of Social Security, Carolyn Colvin, not the individual Administrative Law Judge.
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If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed

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that the court cannot refer to a prior pleading in order to make his amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. Plaintiff is informed that once he files an amended complaint, the Court is

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required to again conduct a screening pursuant 28 U.S.C. § 1915(e). Therefore, litigation of

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Plaintiff’s case does not automatically commence upon the filing of an amended complaint.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis

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(ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred

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dollars ($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that Plaintiff’s Complaint (#1-1) be dismissed without

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prejudice with leave to amend. Plaintiff shall have until December 2, 2016 to file an amended

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complaint correcting the noted deficiencies.

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DATED this 3rd day of November, 2016.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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