IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 3, 2011
BAILEY J. NELSON, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff has requested authority under 28 U.S.C. § 1915 to proceed in forma pauperis. Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
The complaint as filed is insufficient, however. Although plaintiff requests that the Social Security Administration re-examine its decision, plaintiff does not allege that he received a final decision from the SSA, which is a jurisdictional requirement. Federal courts may only review final decisions of the Commissioner. 42 U.S.C. § 405(g). For example, an Appeals Council denial of review of the ALJ's decision is a final decision. Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993). Plaintiff will be given leave to file an amended complaint. The amended complaint shall state whether plaintiff received a final decision, and if so, the date of that decision by the Appeals Council.
Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis is granted.
2. Plaintiff's complaint is dismissed for the reasons discussed above, with leave to file an amended complaint within twenty-eight (28) days from the date of service of this Order. Failure to file an amended complaint will result in a recommendation that this action be dismissed.
© 1992-2011 VersusLaw Inc.