Kelly v. Berryhill

Filing 3

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis.; Amended Complaint deadline: 10/26/2017. Plaintiff's Complaint is dismissed without prejudice with leave to amend. Signed by Magistrate Judge George Foley, Jr on 9/26/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 15 DARRELL E. KELLY, ) ) 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 18, 2017. 16 17 Case No. 2:17-cv-02432-RFB-GWF BACKGROUND Plaintiff alleges a claim against the Social Security Administration (SSA), challenging its 18 denial of social security disability benefits. Plaintiff alleges that at all times relevant to this action, 19 he was disabled as defined by the Social Security Act. Plaintiff claims that the Social Security 20 Commissioner, initially and upon reconsideration, denied his requests for disability insurance 21 benefits and supplemental security income. Plaintiff now seeks judicial review of the findings of the 22 Administrative Law Judge dated July 9, 2017. 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. Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must additionally screen a 2 3 complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to 4 dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief 5 may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is immune 6 from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for 7 failure to state a claim upon which relief may be granted “if it appears beyond a doubt that the 8 plaintiff can prove no set of facts in support of his claims that would entitle him to relief.” Buckey v. 9 Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is 10 premised on a nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 11 319, 327–28 (1989). When a court dismisses a complaint under § 1915(e), the plaintiff should be 12 given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear 13 from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. 14 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 III. 16 Plaintiff asks this Court to review his social security application. A disagreement with the Complaint 17 Social Security Administration’s (“SSA”) final decision may be grounds for this Court to review the 18 case. Federal courts only have jurisdiction to conduct judicial review of the SSA’s final decisions. 19 See 42 U.S.C. § 405(g); see also Pacific Coast Medical Enterprises v. Harris, 633 F.2d 123, 137 20 (9th Cir. 1980). It is unclear that Plaintiff has exhausted all of his administrative remedies with the 21 SSA. Plaintiff’s Complaint asserts that the ALJ failed to consider all of his medical conditions in 22 coming to his conclusion. Complaint (ECF No. 1-1). However, the Complaint does not clearly 23 detail whether Plaintiff properly appealed the ALJ’s decision to the Appeals Council and, if so, 24 whether his request for review was denied thereby making the ALJ’s denial of benefits a final 25 decision for purposes of judicial review.1 Therefore, Plaintiff does not give the Court the necessary 26 27 28 1 Plaintiff’s complaint states that he is “Requesting for a review of hearing, dated July 9, 2017 by the appeals council.” Therefore, it appears to the Court that Plaintiff has not yet obtained a final decision from the SSA Appeals Council and incorrectly believes that his instant complaint is the proper way to request such a review. 2 1 information to determine if it has jurisdiction over this matter. As a result, the Court will dismiss 2 this complaint with leave to amend, to provide Plaintiff another opportunity to give the Court the 3 necessary information. 4 If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed 5 that the court cannot refer to a prior pleading in order to make his amended complaint complete. 6 Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any 7 prior pleading. This is because, as a general rule, an amended complaint supersedes the original 8 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended 9 complaint, the original pleading no longer serves any function in the case. Therefore, in an amended 10 complaint, as in an original complaint, each claim and the involvement of each defendant must be 11 sufficiently alleged. Plaintiff is informed that once he files an amended complaint, the Court is 12 required to again conduct a screening pursuant 28 U.S.C. § 1915(e). Therefore, litigation of 13 Plaintiff’s case does not automatically commence upon the filing of an amended complaint. 14 Accordingly, 15 IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis 16 (ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred 17 dollars ($400.00). 18 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to 19 conclusion without the necessity of prepayment of any additional fees or costs or the giving of 20 security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the 21 issuance of subpoenas at government expense. 22 IT IS FURTHER ORDERED that Plaintiff’s Complaint (#1-1) be dismissed without 23 prejudice with leave to amend. Plaintiff shall have until October 26, 2017 to file an amended 24 complaint correcting the noted deficiencies. 25 DATED this 26th day of September, 2017. 26 27 28 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 3

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