Hadden v. Berryhill

Filing 6

ORDER that Plaintiff has until 1/19/2018 to correct the noted deficiencies in ECF No. 5 Amended Complaint. Signed by Magistrate Judge George Foley, Jr on 12/20/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STACY HADDEN,

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Plaintiff,
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vs.
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NANCY A. BERRYHILL, Acting Commissioner )
of Social Security,
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Defendant.
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__________________________________________)

Case No. 2:17-cv-02817-MMD-GWF
ORDER

This matter is before the Court on the screening of Plaintiff’s Amended Complaint (ECF
No. 5), filed on December 14, 2017.

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BACKGROUND

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The Court granted Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1) on

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November 21, 2017. The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)

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and dismissed her Complaint with leave to amend. The Court set forth the requirements to

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sufficiently allege a social security appeal and instructed Plaintiff to correct noted deficiencies. See

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ECF No. 3.

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Upon granting a request to proceed in forma pauperis and granting leave to amend, a court

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must additionally screen a complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts

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are given the authority to dismiss a case if the action is legally “frivolous or malicious,” fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant/third

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party plaintiff who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion

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thereof, should be dismissed for failure to state a claim upon which relief may be granted “if it

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appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims that

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would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). When a

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court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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F.3d 1103, 1106 (9th Cir. 1995).

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To satisfy the screening requirements with respect to social security appeals, a plaintiff must

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set forth the following: (1) the plaintiff must establish that she has exhausted her administrative

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

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days after notice of a final decision; (2) the complaint must indicate the judicial district in which

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the plaintiff resides; (3) the complaint must state the nature of the plaintiff's disability and when the

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plaintiff claims she became disabled; and (4) 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. Montoya v. Colvin,

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2016 WL 890922, at *2 (D. Nev. Mar. 8, 2016) (citing Soete v. Colvin, 2013 WL 5947231, *2 (D.

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Nev. Nov. 4, 2013); Pitcher v. Astrue, 2012 WL 3780354, *1 (D. Nev. Aug. 30, 2012)).

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Plaintiff does not sufficiently allege the foregoing requirements to maintain a social security

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appeal. Plaintiff does not allege that she exhausted her administrative remedies, that she timely

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commenced this case, or that she resides in this judicial district. Further, Plaintiff does not provide

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any allegations as to why the Social Security Administration’s determination denying her benefits

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is wrong. Plaintiff must provide a short and plain statement identifying the basis of her

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disagreement with the Social Security Administration's determination and must make a showing

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that she is entitled to relief.

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The Court will allow Plaintiff leave to amend to correct the noted deficiencies. If Plaintiff

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elects to proceed in this action by filing a second amended complaint, she is informed that the court

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cannot refer to a prior pleading in order to make her second amended complaint complete. Local

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Rule 15–1 requires that an amended complaint be complete in itself without reference to any prior

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pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files a second
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amended complaint, the original pleading no longer serves any function in the case. Therefore, in

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an amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged. Plaintiff is advised that litigation will not commence upon

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the filing of a second amended complaint. Rather, the Court will need to conduct an additional

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screening of the second amended complaint pursuant to 28 U.S.C. § 1915A. If Plaintiff fails to file

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a second amended complaint or fail to cure the deficiencies identified above, the Court will

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recommend that the complaint be dismissed with prejudice Accordingly,

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IT IS HEREBY ORDERED that Plaintiff shall have until January 19, 2018 to file an
amended complaint correcting the noted deficiencies.
DATED this 20th day of December, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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