United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the court is Plaintiff Desiree Nelson's
application for leave to proceed in forma pauperis
(ECF Nos. 1), filed on October 14, 2016. Plaintiff filed an
amended application to proceed in forma pauperis
(ECF No. 2) on October 17, 2016.
In Forma Pauperis Application
has submitted the affidavit required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Accordingly, the request to proceed in
forma pauperis will be granted.
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
complaint challenges a decision by the Social Security
Administration (“SSA”) denying benefits. Before
filing suit, a plaintiff must exhaust administrative
remedies. See 42 U.S.C. § 405(g); see also
Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir.
1989) (per curiam) (“Section 405(g) provides that a
civil action may be brought only after (1) the claimant has
been party to a hearing held by the Secretary, and (2) the
Secretary has made a final decision on the claim”).
Generally, if the SSA denies a claimant's application for
disability benefits, he can request reconsideration of the
decision. If the claim is denied at the reconsideration
level, a claimant may request a hearing before an
Administrative Law Judge (“ALJ”). If the ALJ
denies the claim, a claimant may request review of the
decision by the Appeals Council. If the Appeals Council
declines to review the ALJ's decision, a claimant may
then request judicial review. See generally 20
C.F.R. §§ 404, 416.
plaintiff has exhausted administrative remedies, he can
obtain judicial review of an SSA decision denying benefits by
filing suit within sixty days after notice of a final
decision. 42 U.S.C. § 405(g). An action for judicial
review of a determination by the SSA must be brought
“in the district court of the United States for the
judicial district in which the plaintiff resides.”
Id. The complaint should state the nature of
plaintiff's disability, when plaintiff claims he became
disabled, and when and how he exhausted his administrative
remedies. The complaint should also contain a plain, short,
and concise statement identifying the nature of
plaintiff's disagreement with the SSA's determination
and show that plaintiff is entitled to relief. A district
court can affirm, modify, reverse, or remand a decision if
plaintiff has exhausted his administrative remedies and
timely filed a civil action. However, judicial review of the
Commissioner's decision to deny benefits is limited to
determining: (a) whether there is substantial evidence in the
record as a whole to support the findings of the
Commissioner; and (b) whether the correct legal standards
were applied. Morgan v. Commissioner of the Social
Security Adm., 169 F.3d 595, 599 (9th Cir. 1999).
the court finds that Plaintiff failed to allege sufficient
facts in support of her action for judicial review of the
Commissioner's decision. Although Plaintiff states that
she seeks review of an adverse decision that has become final
and that she has exhausted her administrative remedies, the
complaint does not provide the date the notice of final
decision was mailed to her. The court therefore cannot
determine if this lawsuit for judicial review is timely.
Accordingly, the court will dismiss Plaintiffs complaint
without prejudice for Plaintiff to file an amended complaint.
THEREFORE ORDERED that Plaintiffs application to proceed
in forma pauperis (ECF No. 1) is GRANTED. Plaintiff
will not be required to pay the filing fee in this action.
Plaintiff is permitted to maintain this action to conclusion
without the necessity of prepayment of any additional fees or
costs or the giving of a security for fees or costs. This
order granting leave to proceed in forma pauperis
does not extend to the issuance of subpoenas at government
FURTHER ORDERED that the Clerk of the Court must file
Plaintiffs complaint (ECF No. 2-1).
FURTHER ORDERED that the complaint (ECF No. 2-1) is DISMISSED
without prejudice for failure to state a claim upon which
relief can be granted, with leave to amend. If Plaintiff
chooses to file an amended complaint, Plaintiff must file the
amended complaint by June 22, 2017. Failure to ...