Scott v. Social Security Administration

Filing 13

ORDER Vacating 12 Order; REPORT AND RECOMMENDATION Recommending in forma pauperis status be revoked re 11 REFERRAL NOTICE. Objections to R&R due by 4/19/2018. Signed by Magistrate Judge Carl W. Hoffman on 4/5/2018. (Copies have been distributed pursuant to the NEF - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

KENYA N. SCOTT,

5
6
7

Case No. 2:17-cv-02557-RFB-CWH
Plaintiff,
REPORT & RECOMMENDATION

v.
SOCIAL SECURITY ADMINISTRATION,

8

Defendant.

9
10

Presently before this Court is a referral (ECF No. 11) from the United States Court of

11

Appeals for the Ninth Circuit. The Court previously considered the referral and mistakenly

12

issued an order (ECF No. 12), instead of a report and recommendation. The Court will vacate the

13

previous order.

14

The Ninth Circuit has instructed this Court to determine whether Plaintiff’s in forma

15

pauperis status should continue for her appeal. An appeal may not be taken in forma pauperis if

16

the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). An

17

appeal’s good faith requirement is satisfied if it seeks review of any issue that is “not frivolous.”

18

Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977). The Ninth Circuit has previously held that

19

“[i]f at least one issue or claim is found to be non-frivolous, leave to proceed in forma pauperis on

20

appeal must be granted for the case as a whole.” Hooker v. Am. Airlines, 302 F.3d 1091, 1092

21

(9th Cir. 2002).

22

On October 11, 2017, the Court granted Plaintiff’s application to proceed in forma

23

pauperis (ECF No. 4), finding that Plaintiff was unable to pay the filing fee in District Court. In

24

the same order, the Court also ordered that Plaintiff’s complaint be dismissed without prejudice

25

for failure to state a claim upon which relief can be granted. Plaintiff was given thirty days in

26

which to file an amended complaint. Plaintiff did not file an amended complaint, but on

27

November 14, 2017, did file a four-line notice to the Court (ECF No. 6) that addressed some, but

28

1

not all, of the deficiencies noted in her complaint. On December 1, 2017, Judge Hoffman issued

2

a report and recommendation (ECF No. 7) that Plaintiff’s complaint be dismissed without

3

prejudice. Plaintiff did not file an objection. On January 22, 2018, Judge Boulware entered an

4

order accepting and adopting the report and recommendation. ECF No. 8. The case was then

5

closed.

6

On March 23, 2018, Plaintiff filed a notice of appeal (ECF No. 9), which claims that “the

7

judge’s findings and ruling are insufficient.” Plaintiff’s notice of appeal re-alleges that her social

8

security benefits were improperly denied, but does not argue that any specific aspect of Judge

9

Boulware’s order dismissing her complaint was erroneous. Considering the lack of any specific

10

objection to the Court’s orders, as well as Plaintiff’s failure to object to the report and

11

recommendation, the Court finds Plaintiff’s appeal is frivolous. The Court will therefore

12

recommend that Plaintiff should not be granted in forma pauperis status for her appeal.

13

//

14

//

15

//

16

//

17

//

18

//

19

//

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28
Page 2 of 3

ORDER AND RECOMMENDATION

1

IT IS THEREFORE ORDERED that the Court’s previous order (ECF No. 12) is

2
3

VACATED.
IT IS HEREBY RECOMMENDED that Plaintiff’s in forma pauperis status be revoked

4
5

for purposes of her appeal.
NOTICE

6

Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must

7
8

be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court

9

has held that the courts of appeal may determine that an appeal has been waived due to the failure

10

to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This

11

circuit has also held that (1) failure to file objections within the specified time and (2) failure to

12

properly address and brief the objectionable issues waives the right to appeal the District Court’s

13

order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d

14

1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir.

15

1983).

16

DATED: April 5, 2018

17
18
19

C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
Page 3 of 3