Shivley v. United States ( 1997 )

OPINION AND ORDER

FRYE, District Judge.

The matter before the court is the review of the complaint filed by the plaintiff, Henry Owen Shivley, Jr., on July 25,1997.

BACKGROUND

On July 3, 1997, the plaintiff, Henry Owen Shivley, Jr., filed his complaint alleging an action against “Federal Administrative Law Judge John J. Madden.”

On July 7, 1997, the Honorable John P. Cooney, United States Magistrate Judge, filed an order to proceed in forma pauperis and a findings and recommendation to this court to dismiss Shivley’s complaint. Magistrate Judge Cooney concluded that this action should be dismissed as frivolous in that Shivley was not entitled to “challenge the decision denying plaintiff benefits by defendant Madden, Jr., and/or defendant Social Security Administration” without exhausting his administrative remedies and bringing a complaint for judicial review pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), in compliance with the Act’s requirements for review of a final decision. Order, p. 4.

On July 25, 1997, Shivley filed a complaint naming Magistrate Judge Cooney as a defendant.

On July 29, 1997, the Honorable Michael R. Hogan, United States District Judge, adopted the findings and recommendation filed by Magistrate Judge Cooney on July 7, 1997 ordering as follows: “This action is dismissed. Plaintiff is allowed to file an amended complaint within 30 days of the date of this order. Faulure [sic] to file an amended complaint will result in the dismissal of this proceeding, with prejudice.” Order, p. 2.

APPLICABLE LAW

A complaint filed in forma pauperis may be dismissed before the service of process if it is deemed frivolous under 28 U.S.C. § 1915(e). Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). A complaint is frivolous “where it lacks an arguable basis in law or in fact.” Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831-32; Lopez v. Dept. of Health Servs., 939 F.2d 881, 882 (9th Cir.1991); Jackson, 885 F.2d at 640.

In determining whether a civil rights complaint is frivolous .under 28 U.S.C. § 1915(e), this court will liberally construe the allegations of the complaint to afford the plaintiff the benefit of any doubt. Lopez, 939 F.2d at 883.

RULING OF THE COURT

The plaintiff, Henry Owen Shivley; Jr., did not file an amended complaint within the time period stated by Judge Hogan in his order of July 29, 1997. However, the court has reviewed the complaint filed by Shivley on July 25, 1997. The complaint filed by Shivley on July 3, 1997 failed “to state a claim under the statutes cited, or under any federal law.” Findings and Recommendation, p. 4. The addition of Magistrate Judge Cooney as a defendant in the complaint filed by Shivley on July 25,1997 does not cure the deficiency. Shivley has stated no claim against Magistrate Judge Cooney or any other alleged defendant.

This action is dismissed without leave to file an amended complaint.

IT IS SO ORDERED.