1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 VICTOR ARZATE, ) Case No. 2:20-cv-01076-DOC (JDE) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE RE: 13 v. ) DISMISSAL FOR FAILURE TO ) 14 NANCY A. BERRYHILL, Acting ) STATE A CLAIM ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 18 On February 3, 2020, Plaintiff Victor Arzate, proceeding pro se, filed a 19 Complaint seeking review of a decision of the Commissioner of Social Security 20 and a Request to Proceed In Forma Pauperis (“IFP”). Dkt. 1, 3. 21 In cases in which a plaintiff is proceeding IFP, the Court has an 22 obligation to dismiss any such case “at any time if the court determines that . . 23 . (B) the action . . . (ii) fails to state a claim upon which relief can be granted.” 24

(e)(2). “A district court may deny leave to proceed [IFP] at 25 the outset if it appears from the face of the proposed complaint that the action 26 is frivolous or without merit.” Minetti v. Port of Seattle,

, 1115 27 (9th Cir. 1998) (as amended) (per curiam). Dismissal for failure to state a claim 28 can be based on either the lack of a cognizable legal theory or the absence of 1 factual support for such a theory. See Mendiondo v. Centinela Hosp. Med. 2 Ctr.,

(9th Cir. 2008). 3 Judicial review of decisions of the Commissioner of Social Security are 4 governed by

(g), which provides, in relevant part: “Any 5 individual, after any final decision of the Commissioner of Social Security 6 made after a hearing to which he was a party . . . may obtain a review of such 7 decision by a civil action commenced within sixty days after the mailing to 8 him of notice of such decision or within such further time as the Commissioner 9 of Social Security may allow.” Section 405(g) limits district court jurisdiction 10 in a case challenging the denial of social security benefits to reviewing the final 11 judgment of the Commissioner. See Johnson v. Shalala,

(9th 12 Cir. 1993). “A complaint appealing the Commissioner’s denial of disability 13 benefits must set forth a brief statement of facts setting forth the reasons why 14 the Commissioner’s decision was wrong.” Ray v. Colvin,

, 15 at *2 (E.D. Cal. May 22, 2014). 16 Here, Plaintiff alleges that he has been disabled since January 18, 2009 17 and purports to challenge a December 2019 decision of the Administrative 18 Law Judge (“ALJ”), but provides virtually no factual support other than 19 stating, “Case Number 3BF01656 Booking 348-38-33 441 Bauchet Room 624 20 Confidentail I am not a homosecil never been gay [¶] refer to attments the 21 criminal cil numbers.” Complaint at 2-4. Attached to the Complaint are sixty- 22 seven pages of attachments, the significance of which is not facially apparent, 23 other than a January 10, 2020 letter from the Social Security Administration 24 reflecting that Plaintiff is receiving monthly Social Security benefits, with a 25 disability entitlement effective date of December 2010. See

(CM/ECF 26 pagination). As it appears that Plaintiff is receiving benefits, it is unclear from 27 the face of the Complaint what decision of the Commissioner Plaintiff is 28 1 challenging or the basis for his challenge. As currently pled, the Complaint 2 fails to allege facts sufficient to state a claim on which relief may be granted. 3 Further, Plaintiff names Nancy A. Berryhill as the acting Commissioner, 4 but the proper defendant in an appeal of the administrative decisions of the 5 Social Security Administration would be Andrew Saul, the Commissioner of 6 the Social Security. Any amended complaint should reflect the proper 7 defendant. 8 *************************** 9 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing 10 within twenty-one (21) days from the date of this Order, why this action 11 should not be dismissed for failure to state a claim. If Plaintiff desires to stand 12 on the current Complaint, he shall so state and may offer any argument in 13 support of the asserted sufficiency of the Complaint. Plaintiff is advised that if 14 he elects to stand on the Compliant, the undersigned is likely to recommend 15 the dismissal of the Complaint for failure to state a claim upon which relief can 16 be granted. 17 Instead of filing a response to this Order, Plaintiff may file an amended 18 complaint within twenty-one (21) days of the date of this Order. Plaintiff’s 19 First Amended Complaint should bear the docket number assigned in this 20 case; be labeled “First Amended Complaint”; and be complete in and of itself 21 without reference to the prior complaint or any other pleading, attachment, or 22 document. Plaintiff’s First Amended Complaint must clearly identify the final 23 decision at issue and specify the factual allegations that Plaintiff contends 24 support his claim for relief and name the proper defendant. Plaintiff should 25 avoid including unrelated allegations and superfluous attachments. 26 Alternatively, Plaintiff may request a voluntary dismissal of this action 27 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk is directed to 28 attach a Notice of Dismissal form. 1 Plaintiff is cautioned that a failure to timely file a response to this Order 2 || will result 1n the Court recommending the dismissal of this action for failure to 3 ||state a claim, failure to prosecute, and/or comply with a court order. See Fed. 4 ||R. Civ. P. 41(b). 5 6 || Dated: February 05, 2020 Ly : Z 8 9 ND. EARLY nited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28