Gutierrez v. Berryhill

Filing 3

ORDER - # 1 IFP Application is GRANTED. Clerk shall FILE the complaint (ECF 1 -2). Clerk shall SERVE Commissioner SSA by sending a copy of the Summons and Complaint by certified mail to: Regional Chief Counsel ; and U. S. Attorney General ( Cert Mail ## 7013 1710 0001 6894 1832, 7013 1710 0001 6894 1849 ) Clerk shall ISSUE a summons to SSA and deliver summons and complaint for service by USM on U.S. Attorney' Office, Reno. ( Summons and complaint to USM on 9 /15/2017. ) Answer to complaint due 60 days after service. Hence forth P shall serve D a copy every pleading submitted for consideration, together with a certificate of service. Signed by Magistrate Judge George Foley, Jr on 9/15/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 13 14 MARK F. GUTIERREZ, ) ) Plaintiff, ) ) vs. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) __________________________________________) ORDER Plaintiff’s Application to Proceed In Forma Pauperis (#1) This matter is before the Court on Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1), filed on September 8, 2017. 15 16 Case No. 2:17-cv-02365-MMD-GWF BACKGROUND Plaintiff alleges a claim against the Social Security Administration (SSA), challenging its 17 denial of social security disability benefits. Plaintiff alleges that at all times relevant to this action, 18 he was disabled as defined by the Social Security Act. Plaintiff claims that the Social Security 19 Commissioner, initially and upon reconsideration, denied his requests for disability insurance 20 benefits and supplemental security income. Plaintiff states that he timely requested review of the 21 ALJ’s decision with the Appeals Council, which was denied on July 5, 2017. Plaintiff now seeks 22 judicial review of that final agency decision. 23 DISCUSSION 24 I. 25 Plaintiff filed this instant action and attached a financial affidavit to his application and Application to Proceed In Forma Pauperis 26 complaint as required by 28 U.S.C. § 1915(a). Having reviewed Plaintiff’s financial affidavit 27 pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. 28 Therefore, Plaintiff's request to proceed in forma pauperis in federal court is granted. 1 II. 2 Plaintiff brings suit against the SSA alleging he was wrongfully denied social security Complaint 3 disability benefits. Federal courts only have jurisdiction to conduct judicial review of the SSA’s 4 final decisions. See 42 U.S.C. § 405(g); Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008); see 5 also Cilifano v. Sanders, 430 U.S. 99, 107–09 (1977). Plaintiff appears to have fully exhausted his 6 administrative remedies with the SSA. The Court will therefore allow Plaintiff’s complaint to 7 proceed as a petition for judicial review of a final agency decision. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis 8 9 10 (ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred dollars ($400.00). 11 12 IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint (ECF No. 1-2). 13 IT IS FURTHER ORDERED that the Clerk of the Court shall serve the Commissioner of 14 the Social Security Administration by sending a copy of summons and Complaint by certified mail 15 to: (1) Office of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear 16 Street, Suite 899, San Francisco, California 94105, and (2) the Attorney General of the United 17 States, Department of Justice, 950 Pennsylvania Ave. NW, Washington DC 20530. 18 IT IS FURTHER ORDERED that the Clerk of the Court shall issue summons to the 19 United States Attorney for the District of Nevada, and deliver the summons and Complaint to the 20 U.S. Marshal for service. 21 IT IS FURTHER ORDERED that Defendant shall have sixty (60) days from the date of 22 service to file her answer or responsive pleading to Plaintiff’s Complaint in this case. 23 ... 24 ... 25 ... 26 ... 27 ... 28 ... 2 1 IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon Defendant, or their 2 attorney if they have retained one, a copy of every pleading, motion, or other document submitted 3 for consideration by the court. Plaintiff shall include with the original paper submitted for filing a 4 certificate stating the date that a true and correct copy of the document was mailed to Defendant or 5 their counsel. The court may disregard any paper received by a district judge, magistrate judge, or 6 the Clerk which fails to include a certificate of service. 7 DATED this 15th day of September, 2017. 8 9 10 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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