United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (DOC.
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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 ...