Lee v. Kijakazi ( 2021 )

2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 WILLIAM LEE, 9 Plaintiff, 2:21-cv-01569-VCF 10 vs. ORDER KILOLO KIJAKAZI, Acting Commissioner of [Motion/Application for Leave to Proceed in 11 Social Security, forma pauperis (ECF No.1)] 12 Defendant. 13 Before the court is Plaintiff Belinda F. Norwood’s Motion/Application to Proceed In Forma 14 Pauperis (ECF No. 1). 15 I. In Forma Pauperis Application 16 Plaintiff asserts in his application to proceed in forma pauperis that he receives $328/monthly in 17 food stamps. He has no other source of income. Id. Accordingly, Plaintiff’s request to proceed in forma 18 pauperis is granted pursuant to § 1915(a). 19 II. Screening the Complaint 20 Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint 21 pursuant to § 1915(e). Specifically, federal courts are given the authority to dismiss a case if the action is 22 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary 23 relief from a defendant who is immune from such relief. § 1915(e)(2). “To survive a motion to dismiss, 24 a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 25 1 plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation 2 omitted). 3 In considering whether the plaintiff has stated a claim upon which relief can be granted, all material 4 allegations in the complaint are accepted as true and are to be construed in the light most favorable to the 5 plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). When a court dismisses a complaint 6 under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing 7 its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by 8 amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation omitted). 9 A. Plaintiff’s Complaint 10 Plaintiff’s complaint arises from an unfavorable decision by the Commissioner of Social Security 11 Administration (hereinafter “Commissioner”). (ECF NO. 1-1). Plaintiff asserts that he is “disabled as 12 that term is defined in the Social Security Act.” Id. The Commissioner denied his application for lack of 13 disability. Id. Plaintiff has appealed the decision of the Commissioner to this court, and requests that 14 this court reverse that decision, or in the alternative, remand this matter for a new hearing... Id. 15 Plaintiff may appeal to this court the Commissioner’s denial of his application for either Disability 16 Insurance Benefits or Supplemental Security Income under Titles II and XVI of the Social Security Act, 17 respectively. See 42 U.S.C. §§ 401-433, 1381-82c. This Court has jurisdiction over the matter. Id. 18 Construing plaintiff’s allegations in light most favorable to plaintiff, the court finds that plaintiff has 19 asserted a claim upon which relief can be granted. See Russell, 621 F.2d at 1039. 20 Accordingly, and for good cause shown, 21 IT IS ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1) is 22 GRANTED. 23 24 25 1 IT IS FURTHER ORDERED that the Plaintiff is permitted to maintain the action to conclusion 2 || without the necessity of prepayment of any additional fees, costs, or security. This order granting in forma 3 || pauperis status does not extend to the issuance of subpoenas at government expense. 4 IT IS FURTHER ORDERED that the Clerk of the Court file the Complaint (ECF No. 1-1) and 5 ||serve the Commissioner of the Social Security Administration by sending a copy of the summons and 6 || Complaint (ECF NO. 1-1) by certified mail to: (1) the Attorney General of the United States, Department 7 || of Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530; and (3) Office of the 8 || Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San 9 || Francisco, CA 94105-1545. 10 IT IS FURTHER ORDERED that the Clerk of Court issue summons to the United States Attorney 11 || for the District of Nevada and deliver the summons and Complaint (ECF NO. 1-1) to the U.S. Marshal for 12 || service. 13 IT IS FURTHER ORDERED that from this point forward, Plaintiff must serve upon defendant, or 14 || his attorney if he has retained one, a copy of every pleading, motion, or other document submitted for 15 || consideration by the court. Plaintiff must include with the original paper submitted for filing a certificate 16 || stating the date that a true and correct copy of the document was mailed to the defendants or their counsel. 17 || The court may disregard any paper received by a district judge, magistrate judge, or the Clerk which fails 18 || to include a certificate of service. 19 . 20 DATED this 26th day of August, 2021. Loew 21 UNITED STATES MAGISTRATE JUDGE 23 24 25