Winters v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tanya Winters, No. CV-21-00034-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Tanya Winter’s First Amended Complaint 16 (“FAC”). (Doc. 7.) Plaintiff filed her FAC pro se against the Social Security Administration 17 (“SSA”). (Id.) The Court granted Plaintiff’s application to proceed in forma puaperis on 18 January 12, 2021. (Doc. 5.) The Court has screened Plaintiff’s FAC pursuant to 28 U.S.C. 19 § 1915(e)(2)(B) and dismisses the FAC with leave to amend. 20 I. Legal Standard 21 When a party proceeds in forma pauperis, 28 U.S.C. § 1915(e)(2) requires the Court 22 to screen lawsuits and dismiss them sue sponte if it determines “the action or appeal…fails 23 to state a claim on which relief may be granted...” Lopez v. Smith, 203 F.3d 1122, 1126 24 (9th Cir. 2000). To adequately state a claim, Rule 8(a) of the Federal Rules of Civil 25 Procedure requires a complaint contain (1) a short and plain statement of the grounds for 26 the court’s jurisdiction, (2) a short and plain statement of the claim showing that the pleader 27 is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Fed. R. 28 Civ. P. 8(a)(3). While detailed factual allegations are not required, “Threadbare recitals of 1 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “must contain sufficient factual 3 matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Id. (quoting 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, a complaint should 5 contain “factual content that allows the court to draw the reasonable inference that the 6 defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 7 II. Statutory Screening 8 From Plaintiff’s FAC, it appears that the appeal was brought almost three years after 9 the time allowed by statute. The statute governing judicial review of final decisions made 10 by the Commissioner of Social Security requires a civil action to be commenced with the 11 district court within sixty days “after the mailing to [her] of notice of such decision or 12 within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. § 13 405(g). Here, Plaintiff states in her FAC that she received notice that the Commissioner’s 14 decision was final on November 30, 2017. (Doc. 7.) Therefore, it appears that Plaintiff 15 brought this case almost three years after the statute would allow. Accordingly, the 16 Plaintiff’s FAC must be dismissed. However, the Court will grant Plaintiff leave to amend 17 in case Plaintiff’s listed date was an error. 18 III. Leave to Amend 19 In accordance with the well-settled law in this Circuit, the Court will grant Plaintiff 20 leave to amend to cure the defects in her FAC if she wishes to do so. See Jackson v. Barnes, 21 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); Lopez, 203 F.3d at 1131 (en banc) 22 (holding a pro se litigant must be given leave to amend “if it appears at all possible the 23 plaintiff can correct the complaint’s defects”); Fed. R. Civ. P. 15(a)(2). Plaintiff’s FAC 24 may be amended to address the deficiencies identified above and should follow the form 25 detailed in Rule 7.1 of the Local Rules of Civil Procedure (“LRCiv”). Plaintiff can obtain 26 a form to use for her amended complaint for judicial review of a Social Security Disability 27 or Supplemental Security Income Decision via this link to the uscourts.gov website: 28 https://www.uscourts.gov/sites/default/files/complaint_for_review_of_social_security.pdf 1 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit an amended complaint. Plaintiff must clearly designate on the face of the document that it || is the “Second Amended Complaint.” The amended complaint must be retyped or rewritten in its entirety and may not incorporate any part of the FAC by reference. 5|| IV. Conclusion 6 Accordingly, 7 IT IS ORDERED that Plaintiffs First Amended Complaint (Doc. 7) is dismissed; 8 IT IS FURTHER ORDERED that if Plaintiff does not file an amended complaint 9|| within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss || this action without further order of this Court; and 11 IT IS FURTHER ORDERED that if Plaintiff elects to file an amended complaint, it may not be served until and unless the Court issues an Order screening the amended 13 || complaint pursuant to 28 U.S.C. § 1915(e)(2). 14 Dated this Ist day of March, 2021. 15 16 a . ~P 17 SO 18 Gnvted States District ude. 19 20 21 22 23 24 25 26 27 28 -3-