McKenzie v. Berryhill

Filing 2

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis; The Clerk must file the Complaint and serve parties summons. Signed by Magistrate Judge Carl W. Hoffman on 11/16/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 JIM O. MCKENZIE, JR., 8 9 10 11 12 13 ) ) Plaintiff, ) ) vs. ) ) NANCY A. BERRYHILL, ) ACTING COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ____________________________________) Case No. 2:17-cv-02752-RFB-CWH ORDER Presently before the court is Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1), 14 15 filed on October 31, 2017. 16 I. 17 In Forma Pauperis Application Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to 18 prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to proceed in forma 19 pauperis will be granted. 20 II. 21 Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 22 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and 23 dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal 25 for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under 26 Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 27 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a 28 claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 1 In considering whether the complaint is sufficient to state a claim, all allegations of material fact 2 are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v. 3 Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard 4 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than 5 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic 6 recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint’s 7 deficiencies could not be cured through amendment, a plaintiff should be given leave to amend the 8 complaint with notice regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 9 1106 (9th Cir. 1995). 10 If a plaintiff’s complaint challenges a decision by the Social Security Administration (“SSA”), 11 before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 U.S.C. § 405(g); see 12 also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (“Section 405(g) 13 provides that a civil action may be brought only after (1) the claimant has been party to a hearing held 14 by the Secretary, and (2) the Secretary has made a final decision on the claim”). Generally, if the SSA 15 denies a claimant’s application for disability benefits, the claimant may request reconsideration of the 16 decision. If the claim is denied at the reconsideration level, a claimant may request a hearing before an 17 administrative law judge (“ALJ”). If the ALJ denies the claim, a claimant may request review of the 18 decision by the Appeals Council. If the Appeals Council declines to review the ALJ’s decision, a 19 claimant may then request judicial review. See generally 20 C.F.R. §§ 404, 416. 20 Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a SSA 21 decision denying benefits by filing suit within 60 days after notice of a final decision. Id. An action for 22 judicial review of a determination by the SSA must be brought “in the district court of the United States 23 for the judicial district in which the plaintiff resides.” Id. The complaint should state the nature of 24 Plaintiff’s disability, when Plaintiff claims he became disabled, and when and how he exhausted his 25 administrative remedies. The complaint should also contain a plain, short, and concise statement 26 identifying the nature of Plaintiff’s disagreement with the determination made by the Social Security 27 Administration and show that Plaintiff is entitled to relief. A district court can affirm, modify, reverse, 28 or remand a decision if Plaintiff has exhausted his administrative remedies and timely filed a civil 2 1 action. However, judicial review of the Commissioner’s decision to deny benefits is limited to 2 determining: (a) whether there is substantial evidence in the record as a whole to support the findings of 3 the Commissioner; and (b) whether the correct legal standards were applied. Morgan v. Commissioner 4 of the Social Security Adm., 169 F.3d 595, 599 (9th Cir. 1999). 5 Here, Plaintiff alleges that on September 1, 2017, the Appeals Council denied his request for 6 review, and, at that time, the ALJ’s decision became the final decision of the Commissioner. Thus, it 7 appears Plaintiff has exhausted her administrative remedies. Additionally, Plaintiff’s complaint 8 includes sufficient facts to state a claim for relief. 9 Based on the foregoing and good cause appearing therefore, 10 IT IS ORDERED that: 11 1. 12 13 Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff will not be required to pay the filing fee of $400.00. 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 14 prepayment of any additional fees or costs or giving security for them. This Order granting leave to 15 proceed in forma pauperis does not extend to the issuance of subpoenas at government expense. 16 3. The Clerk of Court must file the Complaint. 17 4. The Clerk of the Court must serve the Commissioner of the Social Security 18 Administration by sending a copy of the summons and Complaint by certified mail to: (1) Office of 19 Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San 20 Francisco, California 94105-1545; and (2) the Attorney General of the United States, Department of 21 Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530. 22 23 24 5. The Clerk of Court must issue summons to the United States Attorney for the District of Nevada and deliver the summons and Complaint to the U.S. Marshal for service. 6. From this point forward, Plaintiff must serve on Defendant or, if appearance has been 25 entered by an attorney, on the attorney, a copy of every pleading, motion or other document submitted 26 for consideration by the court. Plaintiff must include with the original paper submitted for filing a 27 certificate stating the date that a true and correct copy of the document was personally served or sent by 28 mail to the defendants or counsel for the defendants. The court may disregard any paper received by a 3 1 district judge or magistrate judge that has not been filed with the Clerk, and any paper received by a 2 district judge, magistrate judge or the Clerk that fails to include a certificate of service. 3 4 DATED: November 16, 2017 5 6 ______________________________ C.W. Hoffman, Jr. United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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