Stewart v. Kijakazi

Filing 13

ORDER DISMISSING PLAINTIFF'S AMENDED COMPLAINT, WITHOUT PREJUDICE, AND CLOSING THE FILE. Case is closed. Signed by Magistrate Judge Alexander C Ekstrom. (AY, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)

Case 2:22-cv-00185-ACE

ECF No. 13

filed 09/15/22

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

Sep 15, 2022

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

4 ROBERT S.,

No. 2:22-CV-0185-ACE
Plaintiff,

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ORDER DISMISSING PLAINTIFF’S
AMENDED COMPLAINT,
WITHOUT PREJUDICE, AND
CLOSING THE FILE

v.

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KILOLO KIJAKAZI, ACTING
8 COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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BEFORE THE COURT is Plaintiff Robert S.’s (Plaintiff’s) Amended

12 Complaint, filed on September 14, 2022. ECF No. 12. Plaintiff is proceeding pro
13 se and in forma pauperis. The parties have consented to proceed before a
14 magistrate judge. ECF No. 6.
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LEGAL STANDARDS

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A. Screening Requirement

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This Court must screen complaints brought by litigants proceeding in forma

18 pauperis and shall dismiss a case if at any time the Court determines that the
19 complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
20 may be granted; or (iii) seeks monetary relief against a defendant who is immune
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1 from such relief.” 28 U.S.C. § 1915(e)(2); Calhoun v. Stahl, 254 F.3d 845, 845
2 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
3 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e)
4 not only permits but requires a district court to dismiss an in forma pauperis
5 complaint that fails to state a claim”).
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All complaints must contain “a short and plain statement of the claim

7 showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). A
8 complaint fails to state a claim for relief under Rule 8 if the factual assertions in
9 the complaint, taken as true, are insufficient for the reviewing court plausibly “to
10 draw the reasonable inference that the defendant is liable for the misconduct
11 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations
12 are not required, but “[t]hreadbare recitals of the elements of a cause of action,
13 supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic
14 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although a court must accept as
15 true all factual allegations contained in a complaint, a court need not accept a
16 plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that]
17 pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short
18 of the line between possibility and plausibility of entitlement to relief.’” Id.
19 (quoting Twombly, 550 U.S. at 557). However, a pro se plaintiff’s complaint is to
20 be construed liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
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B. 42 U.S.C. § 405

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Sections 405(g) and (h) of the Social Security Act waive sovereign

3 immunity in social security cases, providing for judicial review only “after any
4 final decision of the Commissioner of Social Security made after a hearing to
5 which [the individual] was a party.” 42 U.S.C. § 405(g). The Social Security
6 Administration regulations require claimants to complete a four-step administrative
7 review process in order to obtain a judicially-reviewable final decision. That
8 process consists of an initial determination, reconsideration, an administrative law
9 judge decision and Appeals Council review. 20 C.F.R. §§ 404.900(a),
10 416.1400(a). A decision by the Commissioner is not considered “final” until the
11 claimant has exhausted each of these steps. To obtain review, a civil action must
12 be commenced “within sixty days after the mailing to him of notice of such
13 decision or within such further time as the Commissioner of Social Security may
14 allow.” 42 U.S.C. § 405(g).
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With respect to social security appeals, several courts in the Ninth Circuit

16 have set forth the following basic requirements for complaints to survive the
17 Court’s § 1915(e) screening:
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First, the plaintiff must establish that he has exhausted h[is] administrative
remedies pursuant to 42 U.S.C. § 405(g), and that the civil action was
commenced within sixty days after notice of a final decision. Second, the
complaint must indicate the judicial district in which the plaintiff resides.
Third, the complaint must state the nature of the plaintiff’s disability and
when the plaintiff claims [he] became disabled. Fourth, the complaint must
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contain a plain, short, and concise statement identifying the nature of the
plaintiff’s disagreement with the determination made by the Social Security
Administration and show that the plaintiff is entitled to relief.

3 Montoya v. Colvin, No. 16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 (D. Nev.
4 Mar. 8, 2016) (citations omitted).
DISCUSSION

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The foregoing legal standards were provided by this Court in an August 31,

7 2022 order granting Plaintiff leave to file an amended complaint. See ECF No. 10.
8 Plaintiff timely filed an amended complaint and continues to assert an entitlement
9 to disability benefits that has been denied by the SSA. ECF No. 12.
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A review of the Amended Complaint reveals Plaintiff alleges he sustained

11 injuries in a December 29, 1987 employment related car accident. ECF No. 12 at
12 7-8. However, Plaintiff has not described the nature of his alleged disability nor
13 specified when he allegedly became disabled. Moreover, although Plaintiff
14 references a May 1994 Administrative Law Judge decision, he fails to mention a
15 final decision of the Commissioner or whether this civil action was commenced
16 within sixty days after notice of a final decision. Plaintiff has not demonstrated he
17 has exhausted his administrative remedies pursuant to 42 U.S.C. § 405(g). Finally,
18 while the Amended Complaint shows Plaintiff claims he has been wrongfully
19 denied disability benefits, Plaintiff has failed to identify the nature of his
20 disagreement with an SSA determination or why he is entitled to relief.
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Plaintiff was given an opportunity to file an amended complaint to clarify

2 the basis of his claims, explain how he has exhausted his administrative remedies,
3 and otherwise cure deficiencies noted in the original Complaint. ECF No. 10. The
4 Court finds Plaintiff’s Amended Complaint fails to cure the deficiencies of the
5 original Complaint. Accordingly, IT IS HEREBY ORDERED Plaintiff’s
6 Amended Complaint, ECF No. 12, is DISMISSED, WITHOUT PREJUDICE.
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IT IS SO ORDERED. The District Court Executive is directed to file this

8 Order, mail a copy to the pro se Plaintiff, and CLOSE THE FILE.
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DATED September 15, 2022.

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_____________________________________
ALEXANDER C. EKSTROM
UNITED STATES MAGISTRATE JUDGE

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ORDER - 5