White v. Berryhill

Filing 3

SCREENING ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff will not be required to pay the filing fee in this action. The clerk of court must file plaintiff's 1 -1 complaint. The complaint is DISMISSED without prejudice. Amended Complaint dealine: 6/25/2018. Signed by Magistrate Judge Carl W. Hoffman on 5/24/2018. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
CATHY WHITE,
10
11
12
13
14
15

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL,
)
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)
____________________________________)

Case No. 2:18-cv-00504-JCM-CWH
SCREENING ORDER

Presently before the court is plaintiff’s application to proceed in forma pauperis (ECF No. 1),

16
17

filed on March 19, 2018.

18

I.

19

In Forma Pauperis Application
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to

20

prepay fees and costs or give security for them. Accordingly, plaintiff’s request to proceed in forma

21

pauperis will be granted.

22

II.

23

Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must screen the complaint under

24

28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and

25

dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted, or seek

26

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal

27

for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under

28

Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To

1

survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a

2

claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court

3

liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the

4

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom

5

v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

6

In considering whether the complaint is sufficient to state a claim, all allegations of material fact

7

are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v.

8

Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard

9

under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than

10

mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic

11

recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint’s

12

deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend

13

the complaint with notice regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103,

14

1106 (9th Cir. 1995).

15

If a plaintiff’s complaint challenges a decision by the Social Security Administration (“SSA”),

16

before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 U.S.C. § 405(g); see

17

also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (“Section 405(g)

18

provides that a civil action may be brought only after (1) the claimant has been party to a hearing held

19

by the Secretary, and (2) the Secretary has made a final decision on the claim”). Generally, if the SSA

20

denies a claimant’s application for disability benefits, the claimant may request reconsideration of the

21

decision. If the claim is denied at the reconsideration level, a claimant may request a hearing before an

22

administrative law judge (“ALJ”). If the ALJ denies the claim, a claimant may request review of the

23

decision by the Appeals Council. If the Appeals Council declines to review the ALJ’s decision, a

24

claimant may then request judicial review. See generally 20 C.F.R. §§ 404, 416.

25

Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a SSA

26

decision denying benefits by filing suit within 60 days after notice of a final decision. Id. An action for

27

judicial review of a determination by the SSA must be brought “in the district court of the United States

28

for the judicial district in which the plaintiff resides.” Id. The complaint should state the nature of
2

1

plaintiff’s disability, when plaintiff claims he became disabled, and when and how he exhausted his

2

administrative remedies. The complaint should also contain a plain, short, and concise statement

3

identifying the nature of plaintiff’s disagreement with the determination made by the Social Security

4

Administration and show that plaintiff is entitled to relief. A district court can affirm, modify, reverse,

5

or remand a decision if plaintiff has exhausted his administrative remedies and timely filed a civil

6

action. However, judicial review of the Commissioner’s decision to deny benefits is limited to

7

determining: (a) whether there is substantial evidence in the record as a whole to support the findings of

8

the Commissioner; and (b) whether the correct legal standards were applied. Morgan v. Commissioner

9

of the Social Security Adm., 169 F.3d 595, 599 (9th Cir. 1999).

10

Here, plaintiff alleges that on January 26, 2018, the Appeals Council denied her request for

11

review, and, at that time, the ALJ’s decision became the final decision of the Commissioner. Thus, it

12

appears Plaintiff has exhausted her administrative remedies. However, plaintiff does not state the

13

nature of her disability, when she claims she became disabled, or the nature of her disagreement with

14

the Social Security Administration’s findings. The court therefore will dismiss plaintiff’s complaint

15

without prejudice for the plaintiff to file an amended complaint.

16

If plaintiff chooses to file an amended complaint, the document must be titled “Amended

17

Complaint.” The amended complaint must state the nature of plaintiff’s disability, when plaintiff

18

claims she became disabled, and when and how she exhausted her administrative remedies. The

19

amended complaint also must contain a short and plain statement identifying the nature of plaintiff’s

20

disagreement with the determination made by the Social Security Administration and show that plaintiff

21

is entitled to relief. Although the Federal Rules of Civil Procedure adopt a flexible pleading standard,

22

plaintiff still must give the Commissioner of Social Security fair notice of the reasons plaintiff is

23

seeking review of the Commissioner’s decision.

24

Additionally, plaintiff is advised that if she files an amended complaint, the original complaint

25

(ECF No. 1-1) no longer serves any function in this case. As such, the amended complaint must be

26

complete in and of itself without reference to prior pleadings or other documents. The court cannot

27

refer to a prior pleading or other documents to make plaintiff’s amended complaint complete.

28

///
3

1

III.

Conclusion
IT IS THEREFORE ORDERED that plaintiff’s application for leave to proceed in forma

2
3

pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action.

4

Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of any

5

additional fees or costs or the giving of a security for fees or costs. This Order granting leave to

6

proceed in forma pauperis does not extend to the issuance of subpoenas at government expense.

7
8

IT IS FURTHER ORDERED that the clerk of court must file plaintiff’s complaint (ECF No. 11).

9

IT IS FURTHER ORDERED that the complaint (ECF No. 1-1) is DISMISSED without

10

prejudice for failure to state a claim upon which relief can be granted, with leave to amend. If plaintiff

11

chooses to file an amended complaint, plaintiff must file the amended complaint by June 25, 2018.

12

Failure to comply with this order may result in a recommendation that this action be dismissed.

13
14

DATED: May 24, 2018

15
16

______________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28
4