(SS)(PS) Weston v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROCHELLE WESTON, JORDAN No. 2:19-cv-262-MCE-EFB PS SMITH, 12 Plaintiff, 13 ORDER v. 14 SOCIAL SECURITY 15 ADMINISTRATION, et al., 16 Defendants. 17 18 Plaintiff Rochell Weston seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 19 1915.1 Her declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF 20 No. 2. Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 Determining that Ms. Weston may proceed in forma pauperis does not complete the 22 required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it 23 determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to 24 state a claim on which relief may be granted, or seeks monetary relief against an immune 25 defendant. As discussed below, the complaint fails to state a claim and must therefore be 26 dismissed. 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 10 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 11 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 20 Here, the complaint purports to allege claims on behalf of Ms. Weston and her adult son, 21 Jordan Smith. See ECF No. 1 at 1. But Ms. Weston (hereafter referred to as “plaintiff”) is the 22 sole signatory to the complaint, and there is no indication from the record that she is an attorney. 23 Unless plaintiff is an attorney, she may not represent the interest of others, including her son, and 24 may not sign pleadings on his behalf. Rule 11 of the Federal Rules of Civil Procedure requires 25 that “[e]very pleading, written motion, and other paper . . . be signed by at least one attorney of 26 record in the attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. 27 Civ. P. 11(a). In addition, Local Rule 183(a) requires that any individual who is representing 28 herself without an attorney must appear personally or by courtesy appearance by an attorney and 1 may not delegate that duty to any other individual. E.D. Cal. L.R. 183(a). Accordingly, plaintiff 2 may not bring claims on behalf of her son. See Johns v. County of San Diego, 114 F.3d 874, 876 3 877 (9th Cir. 1997) (a non-lawyer has no authority to appear as an attorney for another, and 4 general power of attorney does not give non-lawyer right to assert the personal constitutional 5 claims of another). 6 Further, the complaint’s allegations are too vague and conclusory to state a claim for 7 relief. The complaint purports to assert claims against nine defendants—the Social Security 8 Administration, “Social Security Appeals,” “Social Services,” Department of Treasury, Golden 9 One Credit Union, Rick Finwick, Shela Sharma, Jordan Smith, and Quittie Wilsom. ECF No. 1 10 at 1. But it is difficult to discern from the limited allegations what specific claims plaintiff is 11 attempting to assert as to each. Liberally construed, the complaint alleges that plaintiff attempted 12 to make an appointment at a Social Security Administration (“SSA”) office to file an application 13 for disability benefits. Id. at 4. An SSA reprehensive initially informed plaintiff that she couldn’t 14 make an appointment because someone “had been telling the system” she was not eligible for 15 benefits. Id. Plaintiff was eventually permitted to make an appointment, but she was told the 16 next available appointment was not until January 2019.2 Id. Plaintiff appears to allege that when 17 she went to her appointment, an SSA employee informed her that the office was out of 18 applications. Id. The complaint further alleges that over the course of five years, there were 19 multiple instances where the SSA stopped issuing her son’s disability benefits. Id. Those 20 interruptions in benefits allegedly cause plaintiff, who provides home support services to her son, 21 to lose income and her home. Id. 22 These allegations are too vague and conclusory to provide defendants with sufficient 23 notice of the factual basis for plaintiff’s claims. Jones v. Community Redev. Agency, 733 F.2d 24 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 25 which defendants engaged in that support plaintiff’s claim. Id. The allegations must be short and 26 plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz 27 28 2 The complaint does not specify when plaintiff contacted the SSA branch office. 1 v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 2 1125 (9th Cir. 2002). Plaintiff has not alleged facts which, if presented to any defendant, would 3 adequately put them on notice as to what claims are being brought against them. Significantly, 4 the complaint only advances allegations against defendant SSA, with no allegations concerning 5 the other eight defendants. 6 Plaintiff’s allegations suggest she might be attempting to challenge one or more decisions 7 made by the Commissioner of Social Security. The Social Security Act provides a limited waiver 8 of sovereign immunity by permitting district courts to review a “final decision” of the 9 Commissioner of Social Security. 42 U.S.C. § 405(g). But to obtain a final decision from the 10 Commissioner, a claimant must proceed through all stages of the administrative appeals process. 11 Bowen v. City of New York, 476 U.S. 467, 482 (1986). The stages of the appeals process consist 12 of: 1) initial determination; 2) reconsideration; 3) hearing before an ALJ; and 4) Appeals Council 13 review. Only upon the Appeals Council issuing a decision or declining review of a decision of an 14 ALJ may a claimant seek review in a federal district court. 20 C.F.R. § 404.981. Plaintiff’s 15 allegations do not indicate that she exhausted that process and received a final decision from the 16 Commissioner. Indeed, it is not apparent plaintiff ever filed an application for disability benefits, 17 much less proceeded through the administrative appeals process. 18 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 19 is granted leave to amend the complaint to cure these defects. Lopez v. Smith, 203 F.3d 1122, 20 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to 21 amend to correct any deficiency in their complaints). Any amended complaint must allege a 22 cognizable legal theory against a proper defendant and sufficient facts in support of that 23 cognizable legal theory. Should plaintiff choose to file an amended complaint, the amended 24 complaint shall clearly set forth the allegations against each defendant and shall specify a basis 25 for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims 26 in “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 27 required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper 28 that bears line numbers in the left margin, as required by Eastern District of California Local wOAOe 2h UV VV OORT BP UITIOCTI DG POR VOreUIeN TP Ayt vw VIS 1 | Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each 2 | claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 3 || 10(b), and must plead clear facts that support each claim under each header. 4 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 5 || make an amended complaint complete. Local Rule 220 requires that an amended complaint be 6 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 7 | original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 8 | plaintiff files an amended complaint, the original no longer serves any function in the case. 9 | Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 10 | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 11 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 12 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 13 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 14 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 15 | I. Conclusion 16 Accordingly, it is hereby ORDERED that: 17 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 18 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 19 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 20 || complaint. The amended complaint must bear the docket number assigned to this case and must 21 | be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 22 || accordance with this order will result in a recommendation this action be dismissed. 23 | DATED: August 28, 2020. 24 Doolin SA, LiLo A 25 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 27 28