Grant v. Commissioner of Social Security

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TARA GRANT, Case No. 2:21-cv-00422-DJA

7 Plaintiff, ORDER 8 v.

9 COMISSIONER OF SOCIAL SECURITY,

10 Defendant.

11 12 This matter is before the Court on Plaintiff Tara Grant’s Motion/Application to proceed in 13 forma pauperis submitted on April 2, 2021. (ECF No. 5). The application has sufficiently shown 14 an inability to prepay fees and costs or give security for them. Accordingly, the application to 15 proceed in forma pauperis will be granted pursuant to § 1915. The Court will now review 16 Plaintiff’s complaint. (ECF No. 1-1). 17 When a party seeks permission to pursue a civil case in forma pauperis, courts will screen 18 the complaint. See 28 U.S.C. § 1915(e). With respect to social security appeals specifically, judges 19 in this District have outlined some basic requirements for complaints to satisfy the Court’s 20 screening. First, the complaint must establish that administrative remedies were exhausted pursuant 21 to 42 U.S.C. § 405(g), and that the civil action was commenced within 60 days after notice of a 22 final decision. Second, the complaint must indicate the judicial district in which the plaintiff 23 resides. Third, the complaint must state the nature of the plaintiff’s disability and when the plaintiff 24 claims to have become disabled. Fourth, the complaint must contain a plain, short, and concise 25 statement identifying the nature of the plaintiff’s disagreement with the determination made by the 26 Social Security Administration and show that the plaintiff is entitled to relief. See, e.g., Graves v. 27 Colvin, 2015 WL 357121, *2 (D. Nev. Jan. 26, 2015) (collecting cases). 1 The Court has reviewed Plaintiff’s Complaint (ECF No 1-1) and finds that the requisite 2 elements outlined above have been adequately pled to survive screening and proceed with the 3 case. 4 As for Plaintiff’s Motion for Appointment of Counsel (ECF No. 4), civil litigants do not 5 have a Sixth Amendment right to appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 6 (9th Cir. 1981). In very limited circumstances, federal courts are empowered to request an 7 attorney to represent an indigent civil litigant. For example, courts have discretion, pursuant to 8 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent indigent civil litigants upon a 9 showing of “exceptional circumstances.” Ageyman v. Corrections Corp. of America, 390 F.3d 10 1101, 1103 (9th Cir. 2004). The circumstances in which a court will make such a request, 11 however, are exceedingly rare and require a finding of extraordinary circumstances. United 12 States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986). The difficulties inherent in 13 proceeding pro se do not qualify as exceptional circumstances. Housewright, 900 F.2d 1332, 14 1335-1336 (9th Cir. 1990). Any pro se litigant “would be better served with the assistance of 15 counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Wilborn, 789 F.2d at 16 1331). 17 To determine whether the “exceptional circumstances” necessary for appointment of 18 counsel are present, courts evaluate (1) the likelihood of plaintiff’s success on the merits and (2) 19 the plaintiff’s ability to articulate his claim pro se “in light of the complexity of the legal issues 20 involved.” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 21 Cir. 1986)). Neither of these factors is dispositive and both must be viewed together. Wilborn, 22 789 F.2d at 1331. Here, the Court does not find any exceptional circumstances. Upon review of 23 Plaintiff’s Complaint and supporting documents, it is not clear that Plaintiff’s claims are likely to 24 succeed on the merits. Further, the claims, such as they are, are not complex. 25 IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed in 26 forma pauperis (ECF No. 5) is GRANTED with the caveat that the fees shall be paid if recovery 27 is made. At this time, Plaintiff shall not be required to pre-pay the filing fee. 1 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to 2 conclusion without the necessity of prepayment of any additional fees or costs or the giving of a 3 security therefor. The Order granting leave to proceed in forma pauperis shall not extend to the 4 issuance of subpoenas at government expense. 5 IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No 6 1-1) after redacting her social security number. 7 IT IS FURTHER ORDERED that the Clerk of Court shall serve the Commissioner of 8 the Social Security Administration by sending a copy of the summons and Complaint by certified 9 mail to: (1) Office of Regional Chief Counsel, Region IX, Social Security Administration, 160 10 Spear St., Suite 899, San Francisco, California 94105-1545; and (2) the Attorney General of the 11 United States, Department of Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, 12 D.C. 20530. 13 IT IS FURTHER ORDERED that the Clerk of Court shall issue summons to the United 14 States Attorney for the District of Nevada and deliver the summons and Complaint to the U.S. 15 Marshal for service. 16 IT IS FURTHER ORDERED that from this point forward, Plaintiff shall serve upon 17 Defendant or, if appearance has been entered by counsel, upon the attorney, a copy of every 18 pleading, motion or other document submitted for consideration by the court. Plaintiff shall 19 include with the original paper submitted for filing a certificate stating the date that a true and 20 correct copy of the document was personally served or sent by mail to the defendants or counsel 21 for the defendants. The court may disregard any paper received by a judge which has not been 22 filed with the Clerk, and any paper received by a judge or the Clerk which fails to include a 23 certificate of service. 24 / / / 25 / / / 26 / / / 27 / / / 1 IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF 2 No. 4) is DENIED. 3 DATED: April 7, 2021

5 DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27