Gray v. Saul

• Court: District Court, D. Nevada
• Decided: October 2, 2019
• Docket: 2:19-cv-01546
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CHRISTINE E. GRAY, Case No.: 2:19-cv-01546-KJD-NJK

12 Plaintiff(s), Order 13 v. [Docket No. 1] 14 ANDREW SAUL, 15 Defendant(s). 16 Plaintiff has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis 17 (Docket No. 1), and has submitted a Complaint (Docket No. 1-2). 18 I. Application to Proceed In Forma Pauperis 19 Plaintiff filed an application to proceed in forma pauperis. Docket No. 1. The application 20 has sufficiently shown an inability to prepay fees and costs or give security for them. Accordingly, 21 the application to proceed in forma pauperis will be granted pursuant to § 1915. The Court will 22 now review Plaintiff’s complaint. 23 II. Screening the Complaint 24 When a party seeks permission to pursue a civil case in forma pauperis, courts will screen 25 the complaint. See 28 U.S.C. § 1915(e). With respect to social security appeals specifically, judges 26 in this District have outlined some basic requirements for complaints to satisfy the Court’s 27 screening. First, the complaint must establish that administrative remedies were exhausted 28 pursuant to 42 U.S.C. § 405(g), and that the civil action was commenced within 60 days after 1 notice of a final decision.1 Second, the complaint must indicate the judicial district in which the 2 plaintiff resides. Third, the complaint must state the nature of the plaintiff’s disability and when 3 the plaintiff claims to have become disabled. Fourth, the complaint must contain a plain, short, 4 and concise statement identifying the nature of the plaintiff’s disagreement with the determination 5 made by the Social Security Administration and show that the plaintiff is entitled to relief. See, 6 e.g., Graves v. Colvin, 2015 WL 357121, *2 (D. Nev. Jan. 26, 2015) (collecting cases). 7 The complaint fails to show that this action was timely filed. In particular, it alleges that 8 the Appeals Council denied Plaintiff’s request for review on June 28, 2019. Compl. at ¶ 8. This 9 case was initiated 68 days later on September 4, 2019. The complaint attempts to rectify the 10 untimeliness of the complaint by also alleging that a request was made to the Appeals Council to 11 extend the deadline. Id. No allegation is made that the request was actually granted, however, nor 12 was any such order attached as an exhibit. 13 III. Conclusion 14 Accordingly, the Court hereby ORDERS as follows: 15 1. Plaintiff’s request to proceed in forma pauperis is GRANTED with the caveat that the 16 fees shall be paid if recovery is made. At this time, Plaintiff shall not be required to 17 pre-pay the filing fee. 18 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 19 prepayment of any additional fees or costs or the giving of a security therefor. The 20 Order granting leave to proceed in forma pauperis shall not extend to the issuance of 21 subpoenas at government expense. 22 23 24 25

26 1 “The regulations further provide that receipt of notice of the Appeals Council decision is presumed five days after the date of notice, unless there is a reasonable showing to the contrary.” 27 Bess v. Barnhart, 337 F.3d 988, 989 (8th Cir. 2003). Hence, the presumptive deadline to initiate judicial review is 65 days after the issuance of the Appeals Council decision. This deadline may 28 be extended by the Appeals Council upon a showing of good cause. 20 C.F.R. § 422.210(c). 1 3. The complaint is DISMISSED with leave to amend. Plaintiff will have until October 2 16, 2019, to file an amended complaint, if Plaintiff believes the noted deficiency can 3 be corrected. 4 IT IS SO ORDERED. 5 Dated: October 2, 2019 — oo Nancy J, Koppe 7 United States’ Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28