Greener v. Commissioner of Social Security

Filing 4

ORDER that Plaintiff's IFP Application ECF No. 1 is GRANTED. The complaint shall PROCEED. Clerk shall FILE the complaint (ECF 1 -1). Clerk shall SERVE Commissioner SSA by sending a copy of the Summons and Complaint by certified mail to: Regional Chief Counsel; and U. S. Attorney General (Cert Mail ## 7013 1710 0001 6894 2822, 7013 1710 0001 6894 2839). Clerk shall ISSUE a summons to SSA and deliver summons and complaint for service by USM on U.S. Attorneys Office, Reno. (summons and complaint to USM on 10/25/2017). Hence forth plaintiff shall serve defendant a copy every pleading submitted for consideration, together with a certificate of service. Signed by Magistrate Judge William G. Cobb on 10/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN MARK GREENER,
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Plaintiff,
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vs.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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______________________________________)

3:17-cv-00631-MMD-WGC
ORDER

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Before the court is Plaintiff’s application to proceed in forma pauperis (ECF No. 1) and pro se
complaint (ECF No. 1-1).

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I. APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

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A person may be granted permission to proceed in forma pauperis (IFP) if the person “submits

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

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

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appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith,

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203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all actions filed

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IFP, not just prisoner actions).

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

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unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The

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application must be made on the form provided by the court and must include a financial affidavit

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

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“‘[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some

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

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Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). A litigant need not “be absolutely

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destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331,

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339 (1948).

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A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; therefore,
the application is granted.
II. SCREENING

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“The court shall dismiss the case at any time if the court determines that … the action or appeal

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(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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This provision applies to all actions filed IFP, whether or not the plaintiff is incarcerated. See Lopez, 203

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F.3d at 1129; see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

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Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided

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for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) tracks that language.

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Thus, when reviewing the adequacy of a complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies

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the same standard as is applied under Rule 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th

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Cir. 2012) (“The standard for determining whether a plaintiff has failed to state a claim upon which relief

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can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6)

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standard for failure to state a claim.”). Review under 12(b)(6) is essentially a ruling on a question of law.

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See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).

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In reviewing the complaint under this standard, the court must accept as true the allegations,

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construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s

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favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se

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complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v.

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Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).

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A complaint must contain more than a “formulaic recitation of the elements of a cause of action,”

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it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more …

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than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id.

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(quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At

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a minimum, a plaintiff should state “enough facts to state a claim to relief that is plausible on its face.”

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Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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A dismissal should not be without leave to amend unless it is clear from the face of the complaint

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that the action is frivolous and could not be amended to state a federal claim, or the district court lacks

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subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995);

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O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

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Plaintiff’s complaint names the Commissioner of Social Security, and requests review of the
Commissioner’s final decision. (ECF No. 1-1.)

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Federal courts have sole jurisdiction to conduct judicial review of the Social Security

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Administration’s determination in this regard. See 42 U.S.C. § 405(g). Upon a review of Plaintiff’s

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complaint, it appears administrative remedies have been exhausted with the Social Security

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Administration. Therefore, Plaintiff’s complaint shall proceed.

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III. CONCLUSION

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(1) Plaintiff’s application to proceed IFP (ECF No. 1) is GRANTED. Plaintiff is permitted to

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maintain this action without the necessity of prepayment of fees or costs or the giving of security

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therefor. This order granting IFP status does not extend to the issuance of subpoenas at government

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expense.

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(2) The complaint shall PROCEED. The Clerk is instructed to FILE the complaint (ECF No.
1-1).

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(3) The Clerk shall SERVE the Commissioner of the Social Security Administration by sending

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a copy of the summons and complaint by certified mail to: (1) Office of the Regional Chief Counsel,

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Region IX, Social Security Administration, 160 Spear St., Suite 899, San Francisco, CA 94105-1545;

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and (2) the Attorney General of the United States, Department of Justice, 950 Pennsylvania Avenue,

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N.W., Room 4400, Washington, D.C. 20530.

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(4) The Clerk shall ISSUE a summons to the United States Attorney for the District of Nevada

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and deliver the summons and a copy of the complaint to the U.S. Marshal for service to the U.S.

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Attorney’s Office at 100 West Liberty Street, Suite 600, Reno, Nevada 89501.

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(5) Henceforth, Plaintiff, or counsel, shall serve upon the defendant, or the defendant’s attorney,

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a copy of every pleading, motion or other document submitted for consideration by the court. Plaintiff

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shall include with the original paper submitted for filing a certificate stating the date that a true and

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correct copy of the document was mailed to defendant or defendant’s counsel. The court may disregard

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any paper received by a district judge, magistrate judge, or clerk which fails to include a certificate of

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service.

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IT IS SO ORDERED.

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DATED: October 25, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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