Opinion
No. CV-18-03322-PHX-JAT
10-18-2018
Tanya Winters, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Pending before the Court is Plaintiff's appeal of a denial of social security benefits. (Doc. 1). Plaintiff has also moved to proceed in forma pauperis. (Doc. 2). Plaintiff has also filed two motions regarding service.
Plaintiff has filed at least two previous cases purporting to be an appeal of a denial of social security disability benefits: CV 18-2467 and CV 18-2468. This case appears to be duplicative of those two cases.
In CV 18-2467, this Court held a hearing regarding Plaintiff's failure to complete the service packets so the Marshals could serve her complaint. Plaintiff failed to appear for the hearing. The Court nonetheless gave Plaintiff an extension of time to return the service packets. Plaintiff did not return the service packets and the case was dismissed.
In CV 18-2468, this Court ordered Plaintiff to show cause why the case should not be dismissed as duplicative of CV 18-2467. To date, Plaintiff has not responded to the Court's show cause order.
Plaintiff now files this case, which again appears to be duplicative of CV 18-2467 and CV 18-2468. With respect to Plaintiff's motion to proceed in forma pauperis,
Congress provided with respect to in forma pauperis cases that a district court "shall dismiss the case at any time if the court determines" that the "allegation of poverty is untrue" or that the "action or appeal" is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)("section 1915(e) applies to all in forma pauperis complaints"). "It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim." Id. Therefore, this court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious.Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005).
"[A] complaint, containing both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or wholly incredible, whether or not there are judicially recognized facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). "A case is malicious if it was filed with the intention or desire to harm another." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
In this case, this third attempt to appeal the same denial of social security disability benefits appears to be frivolous, and this Court will dismiss this case as such unless Plaintiff can show cause why the case should not be dismissed.
Accordingly,
IT IS ORDERED that, by October 26, 2018, Plaintiff shall show cause why this case should not be dismissed as frivolous for the reasons stated above.
Dated this 18th day of October, 2018.
/s/_________
James A. Teilborg
Senior United States District Judge