(SS) Kayaian v. Social Security, No. 1:2006cv01631 - Document 3 (E.D. Cal. 2006)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Dennis L. Beck on 11/20/06 RECOMMENDING that this action be DISMISSED without leave to amend Objections to F&R's due by 12/26/2006. (Carter-Ford, R)

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(SS) Kayaian v. Social Security Doc. 3 Case 1:06-cv-01631-AWI-DLB Document 3 Filed 11/21/2006 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 SEVAN KAYAIAN, 9 10 Plaintiff, 11 v. 12 13 COMMISSIONER OF SOCIAL SECURITY, 14 15 Defendant. ) 1:06cv01631 AWI DLB ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) ) ) ) 16 17 18 Plaintiff, appearing pro se and proceeding in forma pauperis, filed the instant complaint on November 14, 2006. Plaintiff appeals a decision of the Commissioner of Social Security. 19 20 DISCUSSION A. Screening Standard 21 Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the 22 complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof 23 if the court determines that the action is legally “frivolous or malicious,” fails to state a claim 24 upon which relief may be granted, or seeks monetary relief from a defendant who is immune 25 from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state 26 a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be 27 cured by amendment. 28 1 Dockets.Justia.com Case 1:06-cv-01631-AWI-DLB Document 3 Filed 11/21/2006 Page 2 of 3 1 Fed. R. Civ. P. 8(a) provides: 2 5 A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. 6 A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 3 4 7 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair 8 notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. 9 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of 10 particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. 11 Although a complaint need not outline all elements of a claim, it must be possible to infer from 12 the allegations that all elements exist and that there is entitlement to relief under some viable 13 legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); 14 Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998). 15 In reviewing a complaint under this standard, the Court must accept as true the allegations 16 of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 17 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick 18 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, 19 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 B. 21 Analysis Plaintiff’s complaint, consisting of one page, attempts to appeal a denial of his mother’s 22 Social Security benefits on his mother’s behalf. Plaintiff names himself, not his mother, as the 23 plaintiff. He states, “my mothers spine is eating itself from the inside out and she is denied 24 because they say she should find work pushing a broom.” Complaint, at 1. He states that his 25 mother has been “waiting four years” because she cannot afford an attorney. Plaintiff requests 26 “full payment along with back-pay from first day application was submitted.” Complaint, at 1. 27 28 Even assuming that the complaint satisfies Rule 8, which it does not, the complaint must be dismissed without leave to amend. Although a non-attorney may appear in propria persona on 2 Case 1:06-cv-01631-AWI-DLB Document 3 Filed 11/21/2006 Page 3 of 3 1 his own behalf, that privilege is personal to him and he has no authority to appear as the attorney 2 for anyone other than himself. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th 3 Cir.1987) (holding that while a nonattorney may represent himself, he has no authority to appear 4 as an attorney for others). Accordingly, Plaintiff has no authority to represent his mother. If she 5 wishes to challenge her Social Security decision, she may file her own complaint. 6 RECOMMENDATION 7 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED 8 9 without leave to amend. These findings and recommendations will be submitted to the Honorable Anthony W. 10 Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after 11 being served with these findings and recommendations, the parties may file written objections 12 with the Court. The document should be captioned "Objections to Magistrate Judge's Findings 13 and Recommendations." The parties are advised that failure to file objections within the 14 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16 17 18 IT IS SO ORDERED. Dated: 3b142a November 20, 2006 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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