Opinion
CV 24-00112-PHX-DWL (ASB)
01-31-2024
James Bedford Alford, Plaintiff, v. Martin O'Malley, Commissioner, SSA, Defendant.
REPORT AND RECOMMENDATION
HONORABLE ALISON S. BACHUS, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Pending before the Court are Plaintiff's Complaint (Doc. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2).
Under Rule 72.2(a)(4) of the Rules of Practice and Procedure for the U.S. District Court for the District of Arizona (“Local Rules” or “LRCiv”), a Magistrate Judge may make determinations and enter appropriate orders pursuant to 28 U.S.C. § 1915, “except that a Magistrate Judge may not deny a request for in forma pauperis status unless the person requesting such status has expressly consented in writing to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).” Indeed, “[a] denial of a motion to proceed in forma pauperis is a final judgment that is immediately appealable pursuant to 28 U.S.C. § 1291.” Tripati v. Rison, 847 F.2d 548, 548 (9th Cir. 1988) (citing Roberts v. United States District Court, 339 U.S. 844 (1950) (per curiam)). “Under 28 U.S.C. § 636, a United States Magistrate may not enter a final judgment on a motion to proceed in forma pauperis unless the matter has been referred to him or her by the court and the parties consent to have the magistrate decide the motion and enter judgment.” Id. (internal citations omitted). Because the undersigned concludes that Plaintiff's in forma pauperis application should be denied for the reasons that follow, the Court issues this Report and Recommendation.
I. Standard of Review
Under 28 U.S.C. § 1915(a)(1), a party “who submits an affidavit that ... the person is unable to pay” may be permitted to proceed “without prepayment of fees or security therefor.” However, with respect to the complaint, the Court shall dismiss an in forma pauperis action if the Court determines that
(A) the allegation of poverty is untrue; or (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2). Section 1915(e) applies to all in forma pauperis proceedings. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “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. at 1127.
Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to contain a short and plain statement of the grounds for the Court's jurisdiction, a short and plain statement of the claim showing the pleader is entitled to relief and a demand for the relief sought. Rule 8, however, requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Therefore, a dismissal for failure to state a claim “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
II. Discussion
A. Screening of Complaint
Plaintiff appears to allege in his Complaint that Defendant has failed to award Plaintiff Social Security benefits to which Plaintiff believes he is entitled. Plaintiff states there is a federal question forming the basis for the Court's jurisdiction, but he fails to cite to the underlying statute that constitutes the federal question. (Doc. 1 at 3.) Instead, Plaintiff cites 28 U.S.C. § 1331. (Id.)
28 U.S.C. § 405(h) expressly provides that 28 U.S.C. § 1331 may not form the basis of an action against the Commissioner of Social Security: “No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.” Thus, Plaintiff's Complaint fails to plead a cognizable legal theory or provide jurisdiction.
In a matter concerning the denial of Social Security benefits, 42 U.S.C. § 405(g) may provide jurisdiction. That statute provides, in pertinent part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.However, a reading of the Complaint does not make clear whether Plaintiff may base this action on 42 U.S.C. § 405(g). Plaintiff alleges three dates of alleged action by the Social Security Administration, but those dates (“Summer of 1985,” “Summer of 2000,” and August 3, 2012, respectively) fall well outside the sixty days identified by the statute. Plaintiff has further failed to indicate what decision of the Social Security Administration he disagrees with, when the decision was rendered, and why he disagrees with the decision. And again, Plaintiff has failed to identify the statute that forms the basis for this Court's jurisdiction. In sum, the Court finds that the Complaint fails to allege sufficient facts under a cognizable legal theory.
Having found that Plaintiff's allegations fail to state a claim for relief, the Court will recommend that the Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and Fed.R.Civ.P. 8(a).
B. Leave to Amend
The Court will recommend to the District Judge that Plaintiff be granted thirty days to file an amended complaint. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (when dismissing for failure to state a claim, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). The Court further recommends that if Plaintiff fails to file an amended complaint within 30 days of the date the District Judge's Order is entered, or if the amended complaint fails to cure the defects that the Court has identified, dismissal may occur.
C. Application to Proceed In Forma Pauperis
Insofar as this Court has recommended dismissal the Complaint with leave to amend, the Court finds the Application (Doc. 2) is rendered moot. Therefore, the undersigned recommends that the Application be denied. The Court further recommends that if Plaintiff were to timely file an amended complaint, Plaintiff be given leave to file a new application to proceed without prepayment of costs.
III. Conclusion
For the foregoing reasons, IT IS THEREFORE RECOMMENDED:
1. That the Complaint (Doc. 1) be dismissed with leave to amend, and that if Plaintiff fails to file an amended complaint within 30 days of the District Judge's Order, or if the amended complaint fails to cure defects identified by the Court, dismissal may occur; and
2. That Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) be denied as moot due to dismissal of the matter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.