(SS) Gutierrez v. Commissioner of Social Security, No. 1:2011cv00454 - Document 3 (E.D. Cal. 2011)
Court Description: ORDER GRANTING 2 Motion to Proceed IFP; and ORDER DISMISSING 1 COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 3/22/2011. First Amended Complaint due within thirty (30) days. (Jessen, A)
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(SS) Gutierrez v. Commissioner of Social Security Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 VINCENT GUTIERREZ, SR., 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner of ) Social Security, ) ) Defendants. ) _____________________________________ ) 1:11-cv-00454 GSA ORDER GRANTING IN FORMA PAUPERIS APPLICATION (Document 2) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Document 1) 16 17 18 19 INTRODUCTION Plaintiff Vincent Gutierrez, Sr. (“Plaintiff”) filed the instant action on March 17, 2011. 20 Plaintiff also filed an application to proceed in forma pauperis on that same date. Having 21 reviewed the request to proceed without prepayment of the filing fee, this Court GRANTS 22 Plaintiff’s in forma pauperis application. 23 Plaintiff appears to be challenging a denial of his application for disability benefits under 24 Titles II and XVI of the Social Security Act. As discussed below, Plaintiff’s Complaint will be 25 dismissed because it fails to state a claim. However, Plaintiff will be granted leave to file an 26 amended complaint. 27 28 1 Dockets.Justia.com 1 DISCUSSION 2 A. 3 Pursuant to Title 28 of the United States Code section 1915(e)(2), the court must conduct Screening Standard 4 an initial review of the complaint for sufficiency to state a claim. The court must dismiss a 5 complaint or portion thereof if the court determines that the action is legally "frivolous or 6 malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from 7 a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines 8 that the complaint fails to state a claim, leave to amend may be granted to the extent that the 9 deficiencies of the complaint can be cured by amendment. 10 A complaint must contain "a short and plain statement of the claim showing that the 11 pleader is entitled to relief . . .." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff 15 must set forth "sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 16 face.'" Ashcroft v. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual 17 allegations are accepted as true, legal conclusion are not. Id. 18 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 19 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 20 support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 21 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. 22 Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 23 complaint under this standard, the court must accept as true the allegations of the complaint in 24 question (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the 25 pro se pleadings liberally in the light most favorable to the Plaintiff (Resnick v. Hayes, 213 F.3d 26 27 28 2 1 443, 447 (9th Cir. 2000)), and resolve all doubts in the Plaintiff's favor (Jenkins v. McKeithen, 2 395 U.S. 411, 421 (1969)). 3 B. 4 Plaintiff’s Complaint indicates he was injured in 2002, and as a result, has been unable to 5 work. He indicates that he has “applied for disability benefits four times . . . and four times [has] 6 been denied.” (Doc. 1.) Plaintiff notes that during the previous administrative proceedings, he 7 was represented by counsel. (Doc. 1.) Plaintiff concludes by “requesting that all [] medical 8 records be reviewed and reconsidered for Social Security Disability benefits” and he seeks an 9 award of those benefits. (Doc. 1.) 10 11 12 C. Plaintiff's Allegations Analysis of Plaintiff's Claims 1. Rule 8(a) As Rule 8(a) states, a complaint must contain "a short and plain statement of the claim." 13 The rule expresses the principle of notice-pleading, whereby the pleader need only give the 14 opposing party fair notice of a claim. Conley v. Gibson, 355 U.S. at 45-46. Rule 8(a) does not 15 require an elaborate recitation of every fact a plaintiff may ultimately rely upon at trial, but only a 16 statement sufficient to "give the defendant fair notice of what the plaintiff's claim is and the 17 grounds upon which it rests." Id. at 47. As noted above, detailed factual allegations are not 18 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. at 1949. 20 In this case, Plaintiff has indicated that he is appealing a denial of his application(s) for 21 disability benefits, but he has not provided any substantive reasons for doing so, nor has he 22 identified any errors in any decision rendered by an Administrative Law Judge (“ALJ”). 23 24 2. Timeliness of the Appeal Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of 25 subject matter jurisdiction. Federal courts are courts of limited jurisdiction and lack inherent or 26 general subject matter jurisdiction. Federal courts can adjudicate only those cases in which the 27 28 3 1 United States Constitution and Congress authorize them to adjudicate. Kokkonen v. Guardian 2 Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 3 109 S.Ct. 2003, 2008 (1989). Federal courts are presumptively without jurisdiction over civil 4 actions, and the burden to establish the contrary rests upon the party asserting jurisdiction. 5 Kokkonen, 511 U.S. at 377. Lack of subject matter jurisdiction is never waived and may be 6 raised by the court sua sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 7 593, 594-595 (9th Cir. 1996). "Nothing is to be more jealously guarded by a court than its 8 jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing." In re 9 Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988). 10 Judicial review of the Commissioner's administrative decisions is governed by section 11 405, subdivisions (g) and (h), of the Social Security Act, which provides in pertinent part: 12 (g) Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. 13 14 15 16 17 18 (h) The findings and decision of the Commissioner after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of facts or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter. 19 42 U.S.C. § 405(g). The aforementioned section operates as a statute of limitations setting the 20 time period in which a claimant may appeal a final decision of the Commissioner. Bowen v. City 21 of New York, 476 U.S. 467, 479 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987). 22 Because the time limit set forth in Title 42 of the United States Code section 405(g) is a 23 condition on the waiver of sovereign immunity, it must be strictly construed. Bowen v. City of 24 New York, 476 U.S. at 479; see also Fletcher v. Apfel, 210 F.3d 510 (5th Cir. 2000) (affirming 25 summary judgment in favor of Commissioner for untimely filing of one day). "The limitations to 26 final decisions and to a sixty-day filing period serve to compress the time for judicial review and 27 28 4 1 to limit judicial review to the original decision denying benefits, thereby forestalling repetitive or 2 belated litigation of stale eligibility claims." Anderson v. Astrue, 2008 WL 4506606 *3 (E.D. 3 Cal. Oct. 7, 2008) (Snyder, J). 4 Here, Plaintiff has not provided any dates related to his application or applications for 5 disability benefits and the denials related thereto. Therefore, it is impossible for this Court to 6 determine whether Plaintiff’s filing is timely. 7 Upon receiving a denial of benefits, a plaintiff has sixty days to file an appeal with the 8 Appeals Council. 20 C.F.R. §§ 404.967, 404.968. When the Appeals Council reviews the case, 9 it will either affirm, modify, or reject the ALJ's recommendation. 20 C.F.R. § 404.979. It may 10 also remand the case. 20 C.F.R. § 404.977. The Appeals Council's decision is binding unless a 11 party files an action in federal district court within sixty days of the Appeals Council's decision. 12 20 C.F.R. §§ 422.210, 404.981. Therefore, prior to filing an appeal in federal court, Plaintiff 13 must establish that an appeal with the Appeals Council was filed. Any complaint filed in federal 14 district court must then be filed within sixty days of the Appeals Council's decision. Plaintiff has 15 failed to demonstrate that he filed an appeal with the Appeals Council, and makes no mention of 16 its decision or the outcome. 17 18 As explained above, any amended complaint must establish that the case is properly before this Court and that it is timely. 19 D. 20 Although Plaintiff's Complaint contains deficiencies as outlined above, this Court will 21 allow Plaintiff an opportunity to amend the Complaint. If Plaintiff decides to file an amended 22 complaint, he is reminded that an amended complaint supercedes the original complaint. Forsyth 23 v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th 24 Cir. 1987). Any amended complaint must be "complete in itself without reference to the prior or 25 superceded pleading." Local Rule 220. Plaintiff is warned that "[a]ll causes of action alleged in 26 an original complaint which are not alleged in an amended complaint are waived." King, 814 Leave to Amend the Complaint 27 28 5 1 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord 2 Forsyth, 114 F.3d at 1474. 3 CONCLUSION 4 For the above reasons, the Complaint filed March 17, 2011, is DISMISSED WITH 5 LEAVE TO AMEND. Plaintiff's amended complaint is due within thirty (30) days of the date of 6 this order. If Plaintiff fails to file an amended complaint, the action will be dismissed for failure 7 to follow a court order. 8 9 10 IT IS SO ORDERED. Dated: 6i0kij March 22, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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