Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allen v. Berryhill

United States District Court, E.D. California

July 5, 2017

ERIKA ALLEN, Plaintiff,
v.
NANCY A. BERRYHILL; LAURA D. ORT-PRESLEY; TRAVIS M. NAGY; and CYNTHIA FORD, Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (DOC. 1)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Pro se plaintiff, Erika Allen (“Plaintiff”), filed a Social Security complaint (the “complaint”) on May, 19, 2017. (Doc. 1). In the complaint, Plaintiff challenges a denial of her application for Disability Insurance Benefits. The Court has reviewed the complaint and dismisses the pleading with leave to amend because it fails to state a claim, and because it appears that jurisdiction is not proper. Although Plaintiff filed an appeal with the Appeals Council, it appears that Plaintiff did not file her complaint in this Court within sixty days of the receiving Appeals Council decision as required. Failure to timely file an appeal results in divesting this Court's jurisdiction to hear this case. Notwithstanding this lack of jurisdiction, Plaintiff will be granted leave to file a First Amended Complaint to possibly establish that jurisdiction is proper, as well as to cure the deficiencies outlined in this order.

         II.DISCUSSION

         A. Screening Standard

         Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint to determine whether it “state[s] a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seek[s] monetary relief against a defendant who is immune from such relief.” If the Court determines that the complaint fails to state a claim, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 678.

         To determine whether a complaint states an actionable claim, the Court must accept the allegations in the complaint as true, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         B. Plaintiff's Allegations

         In the complaint, Plaintiff alleges that Administrative Law Judge Cynthia Floyd (“ALJ”) was biased against her and improperly denied her disability claim. Specifically, Plaintiff contends that the ALJ did not properly identify all of Plaintiff's severe impairments, she improperly calculated the periods that Plaintiff engaged in substantial gainful activity, and the ALJ did not properly consider all of the medical evidence. Plaintiff requests that the case be remanded back to the Office of Disability Adjudication Review so that she can get a fair hearing with an ALJ.

         C. Analysis

         As a preliminary matter, although Plaintiff signed this complaint (Doc. 1, pg. 40), the body of the complaint is written by her husband Stanley Keith Allen, who indicates that he is Plaintiff's representative and is assisting Plaintiff with her case. (Doc. 1, pg. 6). Plaintiff is advised that Pursuant to Local Rule180 (b), only members of the Bar of this Court are permitted to practice in this district. See also, McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (holding that a lay person lacks authority to appear as an attorney for others). Therefore, Mr. Allen may not represent Plaintiff in these proceedings and shall not be listed on any future pleadings unless he is an attorney that has been admitted to practice in this Court and has filed a Notice of Appearance indicating that he is Plaintiff's lawyer. Only Plaintiff can represent herself in this Court. Alternatively, Plaintiff may hire an attorney, which may be advisable as this case appears to present several complex legal issues.

         1.Rule 8(a)

         As Rule 8(a) states, a complaint must contain “a short and plain statement of the claim.” The rule expresses the principle of notice-pleading, whereby the pleader need only give the opposing party fair notice of a claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8(a) does not require an elaborate recitation of every fact a plaintiff may ultimately rely upon at trial, but only a statement sufficient to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Id. at 47. As noted above, detailed factual allegations are not required, but ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.