Opinion
Case No.: 2:20-cv-01660-GMN-NJK
10-08-2020
MICAH ANDRUM HAYES, Plaintiff(s), v. ANDREW SAUL, Defendant(s).
REPORT AND RECOMMENDATION
Plaintiff requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis (Docket No. 1), and submitted a complaint (Docket No. 1-1). On September 15, 2020, the Court denied the application to proceed in forma pauperis without prejudice because it was incomplete. Docket No. 3 at 1. The Court ordered Plaintiff to either pay the filing fee or file an amended application to proceed in forma pauperis by October 6, 2020. Id. at 2. The Court warned that "FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN A RECOMMENDATION THAT THE CASE BE DISMISSED." Id. (emphasis in original).
Plaintiff is proceeding without an attorney, so the Court construes his filings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
On September 15, 2020, the Court also engaged in a screening of Plaintiff's complaint, finding that he failed to state a claim on which relief can be granted because he had not exhausted his remedies with the Social Security Administration. Id. at 1-2. Indeed, the complaint indicated that the Appeals Council had not yet rendered a decision. See id. at 2. The Court ordered Plaintiff to either file an amended complaint or otherwise explain how he had exhausted his administrative remedies by October 5, 2020. Id. The Court warned that "FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN A RECOMMENDATION THAT THE CASE BE DISMISSED." Id. (emphasis in original).
Notwithstanding the explicit warning that dismissal could result, Plaintiff has violated both of the above aspects of the Court's order. He has neither paid the filing fee nor filed an amended application to proceed in forma pauperis. Moreover, he has neither filed an amended complaint nor shown how he exhausted his administrative remedies.
Instead, Plaintiff filed a rambling document purporting to show a default by the Commissioner. Docket No. 4.
Having failed to show he qualifies for pauper status or to pay the filing fee, Plaintiff's case is subject to dismissal. See 28 U.S.C. § 1914. Having failed to properly plead a claim for relief, Plaintiff's case is subject to dismissal. See 28 U.S.C. § 1915(e)(2)(B)(ii); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (trial court may sua sponte dismiss for failure to state a claim where the plaintiff cannot possibly win relief). Accordingly, the undersigned RECOMMENDS that this case be DISMISSED.
Because both of these bases provide grounds for dismissal, the undersigned does not address whether dismissal is warranted for violating the Court's order. See Fed. R. Civ. P. 16(f). --------
Dated: October 8, 2020
/s/_________
Nancy J. Koppe
United States Magistrate Judge
NOTICE
This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation must file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).