UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 19, 2009
JIMMY RODRIGUEZ, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF'S CLAIM AGAINST THE ADMINISTRATIVE LAW JUDGE WITHOUT LEAVE TO AMEND, FIND A COGNIZABLE CLAIM AGAINST DEFENDANT COMMISSIONER OF SOCIAL SECURITY, AND DIRECT SERVICE OF THE COMPLAINT (DOCS. 7, 10) DIRECTIONS TO PLAINTIFF, THE CLERK, AND THE MARSHAL
Plaintiff is proceeding pro se and in forma pauperis with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for benefits. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 72-302(c)(15).
On April 28, 2009, the Magistrate Judge filed findings and a recommendation that 1) Plaintiff's claim against Administrative Law Judge Bert C. Hoffman be dismissed without leave to amend, 2) the Court find that Plaintiff states a claim against the Commissioner of Social Security for review of a decision denying Plaintiff's claim for benefits, and 3) the Court order service upon the Commissioner, with associated directions to the Clerk, Plaintiff and the Marshal.
The findings and recommendation were served on all parties on Plaintiff on April 28, 2009, and contained notice that any objections to the findings and recommendations were to be filed within thirty (30) days of the date of service of the order. An extension of time to file objections was granted.
Plaintiff has filed timely objections to the findings and recommendations; the undersigned has considered the objections and has determined there is no need to modify the findings and recommendations based on the points raised in the objections.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1) The findings and recommendation filed April 28, 2009, ARE ADOPTED IN FULL; and
2) Plaintiff's claim against Administrative Law Judge Bert C. Hoffman IS DISMISSED WITHOUT LEAVE TO AMEND; and
3) The Court FINDS that Plaintiff states a claim against the Commissioner of Social Security for review of a decision denying Plaintiff's claim for benefits, and that thus service upon the Commissioner is appropriate; and
4) The Court DIRECTS Plaintiff, the Clerk, and the Marshal, as follows:
a) The Clerk of the Court shall send Plaintiff one USM-285 form, one summons, an instruction sheet, a notice of submission of documents, and three copies of the complaint filed in this Court.
b) Within thirty days from the date of service of the order, Plaintiff shall complete the notice of submission of documents and submit the completed notice to the Court with the following documents:
1. Completed summons;
2. One completed USM-285 form for each defendant listed above; and
3. Three copies of the endorsed complaint filed in this Court.
Plaintiff need not attempt service on defendant and need not request waiver of service;
c) Upon receipt of the documents described above, the Clerk of the Court SHALL FORWARD them to the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
d) Upon receipt of the documents described above, the Marshal SHALL SERVE the above-named Defendants.
IT IS SO ORDERED.
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