Douzat v. Colvin

Filing 3

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis.; Amended Complaint deadline: 3/8/2017. Complaint shall be filed. Complaint is Dismissed with leave to amend. Signed by Magistrate Judge Nancy J. Koppe on 2/6/2017. (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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MICHAEL K. DOUZAT,

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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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__________________________________________)

Case No. 2:17-cv-00345-RFB-NJK
ORDER
(Docket No. 1)

Plaintiff has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis,

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(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

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

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pauperis will 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

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329, 332 (9th Cir. 1968). When a party seeks permission to pursue a civil case in forma papueris,

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

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the governing statute provides that courts shall dismiss a case at any time if it determines that, inter

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alia, it is frivolous or malicious, or fails to state a claim on which relief may be granted. See id. A

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central function of this screening process is to “discourage the filing of, and waste of judicial and

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private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the

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cost of bringing suit.” Neitzke v. 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

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

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basis of the claims presented and state a claim for relief. See, e.g., Watison v. Carter, 668 F.3d 1108,

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1112 (9th Cir. 2012). Complaints are subject to the pleading standards set out in Rule 8.

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Although Rule 8 does not require detailed

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factual allegations, the complaint must set forth the grounds of the plaintiff’s entitlement to relief

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and may not rest on “labels and conclusions” or a “formulaic recitation of the elements of a cause

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of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts must accept as true all well-pled

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factual allegations contained in the complaint, but the same requirement does not apply to legal

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conclusions. Id. at 679. Mere recitals of the elements of a cause of action, supported only by

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conclusory allegations, do not suffice. Id. at 678. Moreover, where the claims in the complaint have

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not crossed the line from conceivable to plausible, the complaint should be dismissed. Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). When a court dismisses a complaint under § 1915(e),

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the plaintiff should be given leave to amend the complaint with directions as to curing its

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deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured

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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

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

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2012) (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

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In cases in which the plaintiff is proceeding pro se, the Court liberally construes his
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). Plaintiff is represented by an attorney in
this case.

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1122, 1129 (9th Cir. 2000) (en banc) (“section 1915(e) applies to all in forma pauperis complaints”).

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Moreover, although a complaint in a social security appeal may differ in some ways from other civil

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cases, it is also “not exempt from the general rules of civil pleading.” Hoagland, 2012 WL 2521753,

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at *2. With respect to social security appeals specifically, the undersigned and several other judges

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in this District have outlined some of the basic requirements for complaints to satisfy the Court’s

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screening. First, the plaintiff must establish that she has exhausted her administrative remedies

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pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within sixty days after

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notice of a final decision. Second, the complaint must indicate the judicial district in which the

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plaintiff resides. Third, the complaint must state the nature of the plaintiff’s disability and when the

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plaintiff claims she became disabled. Fourth, the complaint must contain a plain, short, and concise

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statement identifying the nature of the plaintiff’s disagreement with the determination made by the

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Social Security Administration and show that the plaintiff is entitled to relief. See, e.g., Graves v.

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Colvin, 2015 WL 357121, *2 (D. Nev. Jan. 26, 2015) (collecting cases).

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It is the fourth element above on which social security plaintiffs most often stumble. “Every

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plaintiff appealing an adverse decision of the Commissioner believes that the Commissioner was

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wrong.” Hoagland, 2012 WL 2521753, at *3. A complaint merely stating that the Commissioner’s

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decision was wrong is plainly insufficient to satisfy a plaintiff’s pleading requirement. See, e.g.,

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Cribbet v. Comm’r of Social Security, 2012 WL 5308044, *3 (E.D. Cal. Oct. 29, 2012) (citing Brown

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v. Astrue, 2011 WL 3664429, *2 (D.N.H. Aug. 19, 2011)). “Similarly, a social security complaint

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that merely parrots the standards used in reversing or remanding a case is not sufficient to withstand

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a screening pursuant to Section 1915(e).” Graves, 2015 WL 357121, at *2 (citing Ashcroft, 556 U.S.

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at 678). Instead, “[a] complaint appealing the Commissioner’s denial of disability benefits must set

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forth a brief statement of facts setting forth the reasons why the Commissioner’s decision was

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wrong.” Hoagland, 2012 WL 2521753, at *2 (collecting cases) (emphasis added); see also Graves,

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2015 WL 357121, at *3 (finding complaint failed to state a claim when it alleged only that “the

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Commissioner’s decision to deny [the plaintiff] benefits was wrong without any indication as to why

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it was wrong other than a recitation of the general standards that govern this Court’s review of that

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decision”); Harris v. Colvin, 2014 WL 1095941, *4 (C.D. Cal. Mar. 17, 2014) (finding complaint

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failed to state a claim when it did not “specify . . . the respects in which [the plaintiff] contends that

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the ALJ’s findings are not supported by substantial evidence and/or that the proper legal standards

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were not applied”); Gutierrez v. Astrue, 2011 WL 1087261, *2 (E.D. Cal. Mar. 23, 2011) (finding

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complaint failed to comply with Rule 8’s notice requirements when it stated only that benefits were

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denied, but had not “provided any substantive reasons” for appealing that decision and had not

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“identified any errors in any decision rendered by the Administrative Law Judge”). The plaintiff

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must provide a statement identifying the basis of the plaintiff’s disagreement with the Social Security

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Administration’s determination and must make a showing that the plaintiff is entitled to relief.

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While this showing need not be made in great detail, it must be presented in sufficient detail for the

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Court to understand the legal and/or factual issues in dispute so that it can meaningfully screen the

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complaint pursuant to § 1915(e). Cf. Hoagland, 2012 WL 2521753, at *4 (the complaint should

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avoid the advocacy and argumentation of the opening brief to be submitted later, but must

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specifically set forth the facts showing an entitlement to relief).

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In this case, Plaintiff has filed a bare-bones, form complaint that is plainly insufficient with

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respect to the third and fourth elements outlined above. See, e.g., Macbrair v. Colvin, 2016 U.S.

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Dist. Lexis 66082 (D. Nev. May 17, 2016); Shields v. Colvin, 2016 U.S. Dist. Lexis 62955 (D. Nev.

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May 11, 2016); Coleman v. Colvin, 2016 U.S. Dist. Lexis 57348 (D. Nev. Apr. 27, 2016); Montoya

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v. Colvin, 2016 U.S. Dist. Lexis 30114 (D. Nev. Mar. 8, 2016); Manneh v. Colvin, 2015 U.S. Dist.

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Lexis 164317 (D. Nev. Dec. 7, 2015); Dearman v. Colvin, 2015 U.S. Dist. Lexis 148862 (D. Nev.

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Oct. 28, 2015); Lopez v. Colvin, 2015 U.S. Dist. Lexis 145565 (D. Nev. Oct. 26, 2015); Schultz v.

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Colvin, 2015 U.S. Dist. Lexis 139163 (D. Nev. Oct. 9, 2015); Bernoudy v. Colvin, 2015 U.S. Dist.

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Lexis 139795 (D. Nev. Oct. 9, 2015); Bogroff v. Colvin, 2015 U.S. Dist. Lexis 114552 (D. Nev. Aug.

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27, 2015); Schwei v. Colvin, 2015 U.S. Dist. Lexis 75100 (D. Nev. June 9, 2015); Aguila v. Colvin,

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2015 U.S. Dist. Lexis 65292 (D. Nev. May 19, 2015); Vandiver v. Colvin, 2015 U.S. Dist. Lexis

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65910 (D. Nev. May 19, 2015); Thacker v. Colvin, 2015 U.S. Dist. Lexis 49632 (D. Nev. Apr. 14,

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2015); Szelap v. Colvin, 2015 U.S. Dist. Lexis 14496 (D. Nev. Feb. 5, 2015).

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In addition, Plaintiff fails to demonstrate that this civil action was commenced in a timely

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manner. Plaintiff states that the Appeals Council denied his request for review on October 27, 2016.

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Compl. at ¶ 8. This case was filed on February 3, 2017, more than 60 days after that denial. Docket

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No. 1. Plaintiff submits that on December 28, 2016, he petitioned the Appeals Council for a 30-day

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extension of time to file a civil suit in federal court. Compl. at ¶ 8. However, Plaintiff provides no

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information as to the Appeals Council’s response to that petition. See Compl.

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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

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the fees shall be paid if recovery is made. At this time, Plaintiff shall not be required

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to pre-pay the 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

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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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of subpoenas 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 March

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8, 2017, to file an Amended Complaint, if Plaintiff believes he can correct the noted

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deficiencies.

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Dated: February 6, 2017

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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