Fury v. Berryhill

Filing 3

ORDER that ECF No. 1 IFP Application is GRANTED. The complaint shall PROCEED. Clerk shall FILE the complaint (ECF 2 -1). Clerk shall SERVE Commissioner SSA by sending a copy of the Summons and Complaint by certified mail to: Regional Chief Co unsel and U. S. Attorney General (Cert Mail Nos. 7013 1710 0001 6894 2761, 7013 1710 0001 6894 2778) Clerk shall ISSUE a summons to SSA and deliver summons and complaint for service by USM on U.S. Attorneys Office, Reno. (Summons an d complaint to USM on 04/17/2016). Hence forth P shall serve D a copy every pleading submitted for consideration, together with a certificate of service. Signed by Magistrate Judge William G. Cobb on 04/17/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
7

THOMAS LESTER FURY, JR.,
Plaintiff,

8
9
10
11

Case No. 3:17-cv-00229-LRH-WGC
ORDER

v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

12
13
14
15

Before the court is Plaintiff’s application to proceed in forma pauperis (IFP) and
complaint. (ECF Nos. 1, 2-1.)
I. APPLICATION FOR LEAVE TO PROCEED IFP

16

A person may be granted permission to proceed IFP if the person "submits an affidavit

17

that includes a statement of all assets such [person] possesses [and] that the person is unable to

18

pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense

19

or appeal and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915; Lopez v.

20

Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that this provision applies to all

21

actions filed IFP, not just prisoner actions).

22

In addition, the Local Rules of Practice for the District of Nevada provide: “Any person

23

who is unable to prepay the fees in a civil case may apply to the court for authority to proceed

24

[IFP]. The application must be made on the form provided by the court and must include a

25

financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1.

26

"'[T]he supporting affidavits [must] state the facts as to [the] affiant's poverty with some

27

particularity, definiteness and certainty.'" U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)

28

(quoting Jefferson v. United States, 277 F.2d 823, 725 (9th Cir. 1960)). A litigant need not "be
absolutely destitute to enjoy the benefits of the statute." Adkins v. E.I. Du Pont De Nemours &
Co., 335 U.S. 331, 339 (1948).

1
2

A review of Plaintiff's application reveals that he is unable to pay the filing fee. As a
result, Plaintiff's application to proceed IFP (ECF No. 1) is granted.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

II. SCREENING
28 U.S.C. § 1915 provides: "the court shall dismiss the case at any time if the court
determines that...the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed in
forma pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122,
1129 (9th Cir. 2000) (en banc); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
curiam).
Dismissal of a complaint for failure to state a claim upon which relief may be granted is
provided for in Federal Rule of Civil Procedure 12(b)(6), and this court applies the same
standard under Section 1915(e)(2)(B) when reviewing the adequacy of the complaint or amended
complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (citation omitted). Review
under 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America,
232 F.3d 719, 723 (9th Cir. 2000).
In reviewing the complaint under this standard, the court must accept as true the
allegations of the complaint, Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740
(1976), construe the pleadings in the light most favorable to plaintiff, and resolve all doubts in
the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Allegations in pro se
complaints are held to less stringent standards than formal pleadings drafted by lawyers, and
must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (per curiam); Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011).
A complaint must contain more than a "formulaic recitation of the elements of a cause of
action," it must contain factual allegations sufficient to "raise a right to relief above the
speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading
must contain something more...than...a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and
-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Procedure § 1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff should state "enough facts
to state a claim to relief that is plausible on its face." Id. at 570; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
A dismissal should not be without leave to amend unless it is clear from the face of the
complaint that the action is frivolous and could not be amended to state a federal claim, or the
district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d
1103, 1106 (9th Cir. 1995) (dismissed as frivolous); O'Loughlin v. Doe, 920 F.2d 614, 616 (9th
Cir. 1990).
Plaintiff's complaint names Nancy Berryhill, Acting Commissioner of Social Security,
and requests review of the Commissioner's final decision. (ECF No. 2-1.)
Federal courts have sole jurisdiction to conduct judicial review of the Social Security
Administration's determination in this regard. See 42 U.S.C. § 405(g). Upon a review of
Plaintiff's complaint, it appears he has exhausted his administrative remedies with the Social
Security Administration. Therefore, Plaintiff's complaint shall proceed.

15
16
17
18
19
20
21
22
23
24
25
26

III. CONCLUSION
(1) Plaintiff's application to proceed IFP (ECF No. 1) is GRANTED. Plaintiff is
permitted to maintain this action without the necessity of prepayment of fees or costs or the
giving of security therefor. This order granting IFP status does not extend to the issuance of
subpoenas at government expense.
(2) The complaint shall PROCEED. The Clerk is instructed to FILE the complaint (ECF
No. 2-1).
(3) The Clerk shall SERVE the Commissioner of the Social Security Administration by
sending a copy of the summons and complaint by certified mail to: (1) Office of the Regional
Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San
Francisco, CA 94105-1545; and (2) the Attorney General of the United States, Department of
Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530.
(4) The Clerk shall ISSUE a summons to the United States Attorney for the District of
Nevada and deliver the summons and a copy of the complaint to the U.S. Marshal for service to
-3-

1
2
3
4
5
6
7
8
9

the U.S. Attorney's Office at 100 West Liberty Street, Suite 600, Reno, Nevada 89501.
(5) Henceforth, Plaintiff, or counsel, shall serve upon the defendant, or the defendant's
attorney, a copy of every pleading, motion, or other document submitted for consideration by the
court. Plaintiff shall include with the original paper submitted for filing a certificate stating the
date that a true and correct copy of the document was mailed to defendant or defendant's
counsel. The court may disregard any paper received by a district judge, magistrate judge, or
clerk which fails to include a certificate of service.
IT IS SO ORDERED.
DATED: April 17, 2017.

10
11
12

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26

-4-