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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
Sharon N. R.,
Plaintiff,

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Case No. 2:24-cv-00178-DJA

v.

Order

Martin O’Malley, Commissioner of Social
Security,

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Defendant.

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Before the Court is Plaintiff Sharon N. R.’s motion for leave to proceed in forma

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pauperis. (ECF No. 8). Because the Court finds that Plaintiff has demonstrated an inability to

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prepay fees and costs or give security for them, it grants the application. However, the Court

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finds that Plaintiff’s complaint has not met the basic requirements to satisfy screening. (ECF No.

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1-1). It thus dismisses her complaint without prejudice. The Court finds these matters properly

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resolved without a hearing. LR 78-1.

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I.

Discussion.
The Court grants Plaintiff’s in forma pauperis application.

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A.

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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability

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to prepay fees and costs or give security for them. Plaintiff’s expenses exceed her income. She

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explains that she relies on family, friends, government agencies, and charitable organizations to

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help with her living expenses. The Court thus finds that Plaintiff is unable to pay an initial partial

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filing fee and grants the application to proceed in forma pauperis.

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B.

Plaintiff’s complaint does not pass the Court’s screening.

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Plaintiff’s complaint has not met the basic requirements to pass screening. When a

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plaintiff seeks leave to file a civil case in forma pauperis, the court will screen the complaint. See

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28 U.S.C. § 1915(e). For social security appeals, judges in this district consider four

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requirements for complaints to satisfy screening. See, e.g., Graves v. Colvin, 2015 WL 357121,

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*2 (D. Nev. Jan. 26, 2015) (collecting cases). See id. First, the complaint must establish that

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administrative remedies were exhausted under 42 U.S.C. § 405(g) and that the plaintiff filed the

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application within 60 days after notice of the Social Security Commissioner’s final decision. See

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id. Second, the complaint must indicate the judicial district in which the plaintiff resides. See id.

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Third, the complaint must state the nature of the plaintiff’s disability and when the plaintiff

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claims to have become disabled. See id. Fourth, the complaint must contain a plain, short, and

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concise statement identifying the nature of the plaintiff’s disagreement with the determination

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made by the Social Security Administration and show that the plaintiff is entitled to relief. See id.

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Here, Plaintiff’s complaint only satisfies the second requirement by stating that she lives

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in the jurisdictional boundaries of this Court. Otherwise, her complaint does not meet the

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requirements for screening. The Court thus dismisses the complaint without prejudice.

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Regarding the first factor, Plaintiff has not shown that she exhausted her administrative

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remedies under 42 U.S.C. § 405(g) and that she timely filed her application. She states that the

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Appeals Council denied her request for review on September 27, 2023, making the administrative

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law judge’s (“ALJ”) decision the final decision of the Commissioner. (ECF No. 1-1 at 1). But

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Plaintiff did not file her complaint within 60 days. While Plaintiff explains that she “has

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requested an extension of time,” Plaintiff also explains that the Appeals Council has not yet

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granted that request. (Id. at 2). Instead, Plaintiff asserts that, because she “believes that the

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Appeals Council will determine that good cause has been shown, her Complaint will be

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appropriately filed pursuant to the requested extension.” (Id.). However, Plaintiff provides no

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authority that her anticipation that the Appeals Council will grant her request for an extension is

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sufficient to constitute exhausting her administrative remedies under 42 U.S.C. § 405(g) for the

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purposes of screening.

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Regarding the third factor, the complaint does not state the nature of Plaintiff’s disability

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and when Plaintiff claims to have become disabled. The complaint simply states that “Plaintiff is

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disabled.” (Id. at 2). This is insufficient.

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Page 2 of 3

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Regarding the fourth factor, the complaint does not contain a plain, short, and concise

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statement identifying the nature of Plaintiff’s disagreement with the determination made by the

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Social Security Administration and showing that Plaintiff is entitled to relief. Instead, she states

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in conclusory and broad fashion that “the denial of her disability claim is not supported by

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substantial evidence under the standards set forth by 42 U.S.C. § 405(g) and all other applicable

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laws and regulations, including the weight of the evidence, her credibility, the medical evidence

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of record, and any and all other applicable evidentiary issues, both in law and in fact…” (Id. at

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2). Again, this is insufficient.

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IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma

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pauperis (ECF No. 1) is granted with the caveat that the fees shall be paid if recovery is made.

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At this time, Plaintiff shall not be required to pay the filing fee.

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. The Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file the

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complaint (ECF No. 1-1) but shall not provide notice of this action to the Commissioner pursuant

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to Rule 3 of the Supplemental Rules for Social Security.

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IT IS FURTHER ORDERED that Plaintiff’s complaint (ECF No. 1-1) is dismissed

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without prejudice and with leave to amend. Plaintiff will have until March 7, 2024 to file an

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amended complaint if the noted deficiencies can be corrected. Failure to comply with this

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order may result in the dismissal of this action.

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DATED: February 7, 2024
DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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