Ritter v. Social Security

Filing 9

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that Plaintiff's 1 -1 Complaint is dismissed without prejudice and with leave to amend. Amended Complaint deadline: 3/7/2024. Signed by Magistrate Judge Daniel J. Albregts on 2/7/2024. (Copies have been distributed pursuant to the NEF - JQC)

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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 6 *** Sharon N. R., Plaintiff, 7 8 9 Case No. 2:24-cv-00178-DJA v. Order Martin O’Malley, Commissioner of Social Security, 10 Defendant. 11 12 Before the Court is Plaintiff Sharon N. R.’s motion for leave to proceed in forma 13 pauperis. (ECF No. 8). Because the Court finds that Plaintiff has demonstrated an inability to 14 prepay fees and costs or give security for them, it grants the application. However, the Court 15 finds that Plaintiff’s complaint has not met the basic requirements to satisfy screening. (ECF No. 16 1-1). It thus dismisses her complaint without prejudice. The Court finds these matters properly 17 resolved without a hearing. LR 78-1. 18 I. Discussion. The Court grants Plaintiff’s in forma pauperis application. 19 A. 20 Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability 21 to prepay fees and costs or give security for them. Plaintiff’s expenses exceed her income. She 22 explains that she relies on family, friends, government agencies, and charitable organizations to 23 help with her living expenses. The Court thus finds that Plaintiff is unable to pay an initial partial 24 filing fee and grants the application to proceed in forma pauperis. 25 B. Plaintiff’s complaint does not pass the Court’s screening. 26 Plaintiff’s complaint has not met the basic requirements to pass screening. When a 27 plaintiff seeks leave to file a civil case in forma pauperis, the court will screen the complaint. See 28 28 U.S.C. § 1915(e). For social security appeals, judges in this district consider four 1 requirements for complaints to satisfy screening. See, e.g., Graves v. Colvin, 2015 WL 357121, 2 *2 (D. Nev. Jan. 26, 2015) (collecting cases). See id. First, the complaint must establish that 3 administrative remedies were exhausted under 42 U.S.C. § 405(g) and that the plaintiff filed the 4 application within 60 days after notice of the Social Security Commissioner’s final decision. See 5 id. Second, the complaint must indicate the judicial district in which the plaintiff resides. See id. 6 Third, the complaint must state the nature of the plaintiff’s disability and when the plaintiff 7 claims to have become disabled. See id. Fourth, the complaint must contain a plain, short, and 8 concise statement identifying the nature of the plaintiff’s disagreement with the determination 9 made by the Social Security Administration and show that the plaintiff is entitled to relief. See id. 10 Here, Plaintiff’s complaint only satisfies the second requirement by stating that she lives 11 in the jurisdictional boundaries of this Court. Otherwise, her complaint does not meet the 12 requirements for screening. The Court thus dismisses the complaint without prejudice. 13 Regarding the first factor, Plaintiff has not shown that she exhausted her administrative 14 remedies under 42 U.S.C. § 405(g) and that she timely filed her application. She states that the 15 Appeals Council denied her request for review on September 27, 2023, making the administrative 16 law judge’s (“ALJ”) decision the final decision of the Commissioner. (ECF No. 1-1 at 1). But 17 Plaintiff did not file her complaint within 60 days. While Plaintiff explains that she “has 18 requested an extension of time,” Plaintiff also explains that the Appeals Council has not yet 19 granted that request. (Id. at 2). Instead, Plaintiff asserts that, because she “believes that the 20 Appeals Council will determine that good cause has been shown, her Complaint will be 21 appropriately filed pursuant to the requested extension.” (Id.). However, Plaintiff provides no 22 authority that her anticipation that the Appeals Council will grant her request for an extension is 23 sufficient to constitute exhausting her administrative remedies under 42 U.S.C. § 405(g) for the 24 purposes of screening. 25 Regarding the third factor, the complaint does not state the nature of Plaintiff’s disability 26 and when Plaintiff claims to have become disabled. The complaint simply states that “Plaintiff is 27 disabled.” (Id. at 2). This is insufficient. 28 Page 2 of 3 1 Regarding the fourth factor, the complaint does not contain a plain, short, and concise 2 statement identifying the nature of Plaintiff’s disagreement with the determination made by the 3 Social Security Administration and showing that Plaintiff is entitled to relief. Instead, she states 4 in conclusory and broad fashion that “the denial of her disability claim is not supported by 5 substantial evidence under the standards set forth by 42 U.S.C. § 405(g) and all other applicable 6 laws and regulations, including the weight of the evidence, her credibility, the medical evidence 7 of record, and any and all other applicable evidentiary issues, both in law and in fact…” (Id. at 8 2). Again, this is insufficient. 9 10 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 11 pauperis (ECF No. 1) is granted with the caveat that the fees shall be paid if recovery is made. 12 At this time, Plaintiff shall not be required to pay the filing fee. 13 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to 14 conclusion without the necessity of prepayment of any additional fees or costs or the giving of 15 security therefor. The Order granting leave to proceed in forma pauperis shall not extend to the 16 issuance of subpoenas at government expense. 17 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file the 18 complaint (ECF No. 1-1) but shall not provide notice of this action to the Commissioner pursuant 19 to Rule 3 of the Supplemental Rules for Social Security. 20 IT IS FURTHER ORDERED that Plaintiff’s complaint (ECF No. 1-1) is dismissed 21 without prejudice and with leave to amend. Plaintiff will have until March 7, 2024 to file an 22 amended complaint if the noted deficiencies can be corrected. Failure to comply with this 23 order may result in the dismissal of this action. 24 25 26 27 DATED: February 7, 2024 DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 28 Page 3 of 3

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