Goin v. Social Security Administration

Filing 3

ORDER that Plaintiff's IFP application (ECF No. 1 ) is GRANTED; the complaint shall PROCEED; Clerk directed to FILE the complaint (ECF No. 1 -1); Clerk shall SERVE Commissioner SSA by sending a copy of the Summons and Complaint by certified mail to the 2 addresses outlined in order: Regional Chief Counsel ; and U. S. Attorney General. (Cert Mail ## 7013 1710 0001 6894 2853, 7013 1710 0001 6894 2846); Clerk shall ISSUE a summons to the U.S. At torney for the District of Nevada and deliver summons and complaint to USM for service (Summons, complaint and copy of this order to USM on 5/9/2018 ); and 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 5/8/2018. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

JUANITA JOAN GOIN,

7
8
9
10

Plaintiff,

13
14

ORDER

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

11
12

Case No. 3:18-cv-00207-HDM-WGC

Before the court is Plaintiff’s application to proceed in forma pauperis (ECF No. 1) and
complaint (ECF No. 1-1).
I. APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

15

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

16

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

17

person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of

18

the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C.

19

§ 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C.

20

§ 1915 applies to all actions filed IFP, not just prisoner actions).

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1
2
3

335 U.S. 331, 339 (1948).
A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee;
therefore, the application is granted.
II. SCREENING

4
5

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

6

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

7

(iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

8

1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed IFP, whether or not the plaintiff is

9

incarcerated. See Lopez, 203 F.3d at 1129; see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001)

10

(per curiam).

11

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

12

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

13

that language. Thus, when reviewing the adequacy of a complaint under 28 U.S.C. §

14

1915(e)(2)(B)(ii), the court applies the same standard as is applied under Rule 12(b)(6). See

15

Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a

16

plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is

17

the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”).

18

Review under 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of

19

America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).

20

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

21

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

22

in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

23

Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted

24

by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation

25

omitted).

26

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

27

action,” it must contain factual allegations sufficient to “raise a right to relief above the speculative

28

level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain

-2-

1

something more … than … a statement of facts that merely creates a suspicion [of] a legally

2

cognizable right of action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure §

3

1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff should state “enough facts to state a

4

claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662,

5

678 (2009).

6

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

7

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

8

district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d

9

1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

10
11

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

12

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

13

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

14

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

15

Administration. Therefore, Plaintiff’s complaint shall proceed.
III. CONCLUSION

16
17

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

18

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

19

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

20

expense.

21
22

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

23

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

24

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

25

Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San Francisco, CA

26

94105-1545; and (2) the Attorney General of the United States, Department of Justice, 950

27

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

28

///

-3-

1

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

2

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

3

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

4

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

5

attorney, a copy of every pleading, motion or other document submitted for consideration by the

6

court. Plaintiff shall include with the original paper submitted for filing a certificate stating the

7

date that a true and correct copy of the document was mailed to defendant or defendant’s counsel.

8

The court may disregard any paper received by a district judge, magistrate judge, or clerk which

9

fails to include a certificate of service.

10

IT IS SO ORDERED.

11

DATED: May 8, 2018.

12
13
14

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-