Mancinelli v. Social Security ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 SUSANNE MANCINELLI, Case No.: 3:21-cv-00273-WGC 4 Plaintiff Order 5 v. Re: ECF Nos. 1, 1-1 6 ANDREW SAUL, Commissioner of 7 Social Security, 8 Defendant 9 10 Before the court is Plaintiff’s application to proceed in forma pauperis (ECF No. 1) and 11 complaint (ECF No. 1-1). 12 I. APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 13 A person may be granted permission to proceed in forma pauperis (IFP) if the person 14 “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the 15 person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of 16 the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. 17 § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 18 U.S.C. § 1915 applies to all actions filed IFP, not just prisoner actions). 19 In addition, the Local Rules of Practice for the District of Nevada provide: “Any person 20 who is unable to prepay the fees in a civil case may apply to the court for authority to proceed 21 [IFP]. The application must be made on the form provided by the court and must include a 22 financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 23 1 “‘[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 2 particularity, definiteness and certainty.’” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 3 (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). A litigant need not “be 4 absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & 5 Co., 335 U.S. 331, 339 (1948). 6 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 7 therefore, the application is granted. 8 II. SCREENING 9 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 10 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 11 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 12 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 13 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 14 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 15 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 16 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 18 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 19 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 20 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 21 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 22 The court must accept as true the allegations, construe the pleadings in the light most 23 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 1 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 2 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 3 (1980) (internal quotation marks and citation omitted). 4 A complaint must contain more than a “formulaic recitation of the elements of a cause of 5 action,” it must contain factual allegations sufficient to “raise a right to relief above the 6 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 7 must contain something more … than … a statement of facts that merely creates a suspicion [of] 8 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 9 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 A dismissal should not be without leave to amend unless it is clear from the face of the 12 complaint that the action is frivolous and could not be amended to state a federal claim, or the 13 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 14 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 15 Plaintiff’s complaint names Andrew Saul, who was the Acting Commissioner of Social 16 Security when Plaintiff filed this action, and requests review of the Commissioner’s final 17 decision. (ECF No. 1-1.) 18 Federal courts have sole jurisdiction to conduct judicial review of the Social Security 19 Administration’s determination in this regard. See 42 U.S.C. § 405(g). Upon a review of 20 Plaintiff’s complaint, it appears administrative remedies have been exhausted with the Social 21 Security Administration. Therefore, Plaintiff’s complaint shall proceed. The complaint shall 22 proceed, however, against Dr. Kilolo Kijakazi, who is now the Acting Commissioner of the 23 Social Security Administration. See Fed. R. Civ. P. 25(d). 1 III. CONCLUSION 2 (1) Plaintiff’s application to proceed IFP (ECF No. 1) is GRANTED. Plaintiff is 3 permitted to maintain this action without the necessity of prepayment of fees or costs 4 or the giving of security therefor. This order granting IFP status does not extend to the 5 issuance of subpoenas at government expense. 6 (2) The complaint shall PROCEED against Acting Commissioner Dr. Kilolo Kijakazi. 7 The Clerk is instructed to FILE the complaint (ECF No. 1-1). 8 (3) The Clerk shall ISSUE summonses and SERVE the Commissioner of the Social 9 Security Administration by sending a copy of the summons and complaint by 10 certified mail to: (1) Office of the Regional Chief Counsel, Region IX, Social 11 Security Administration, 160 Spear St., Suite 899, San Francisco, CA 94105-1545; 12 and (2) the Attorney General of the United States, Department of Justice, 950 13 Pennsylvania Ave., N.W., Room 4400, Washington, D.C., 20530. 14 (4) The Clerk shall also ISSUE a summons to the United States Attorney for the District 15 of Nevada and deliver the summons and a copy of the complaint to the U.S. Marshal 16 for service to the U.S. Attorney’s Office at 400 S. Virginia Street, Suite 900, Reno, 17 Nevada 89501. 18 (5) The Clerk shall SEND Plaintiff (or counsel if Plaintiff is represented) sufficient 19 copies of service of process forms (USM-285). Plaintiff has 20 days to return the 20 required USM-285 forms to the U.S. Marshal at 400 S. Virginia Street, 2nd Floor, 21 Reno, Nevada 89509. 22 (6) From now on, Plaintiff, or counsel, shall serve upon the defendant, or the defendant’s 23 attorney, a copy of every pleading, motion or other document submitted for ] consideration by the court. Plaintiff shall include with the original paper submitted for 2 filing a certificate stating the date that a true and correct copy of the document was 3 mailed to defendant or defendant’s counsel. The court may disregard any paper 4 received by a district judge, magistrate judge, or clerk which fails to include a 5 certificate of service. 6 IT IS SO ORDERED. 7|| Dated: August 10, 2021 g btu. G. Cott William G. Cobb 9 United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23