1 2 3 4 IN THE DISTRICT COURT 5 FOR THE TERRITORY OF GUAM 6 PAUL OPENA EVARISTO, ) CIVIL CASE NO. 16-00024 7 ) Plaintiff, ) 8 ) vs. ) ORDER 9 ) and SOCIAL SECURITY, ) REPORT & RECOMMENDATION 10 ) Defendant. ) 11 ) ) 12 13 ORDER 14 The court has reviewed Plaintiff’s Complaint and his request for a waiver of fees (the 15 “Application”). Based upon his Application, it appears that Plaintiff is qualified to proceed in forma 16 pauperis, without paying the necessary fees as he has stated in his Application that he has a limited 17 monthly income. However, the court orders that his Application to proceed in forma pauperis and 18 thus move forward with this case be denied since it is also recommending below that his case be 19 dismissed without prejudice. 20 REPORT & RECOMMENDATION 21 The court must subject each civil action commenced pursuant to

(a)1 to 22 mandatory screening, and order the dismissal of any claims it finds “frivolous, malicious, failing to 23 state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune 24 from such relief.”

(e)(2)(B); Lopez v. Smith,

, 1126–27 (9th Cir. 25 26 1 Under this statute, federal courts can authorize the filing of a law suit without prepayment 27 of fees or security by a person who submits an affidavit that includes a statement setting forth all the person’s assets and demonstrates an inability to pay such costs or give such security. The Plaintiff’s 28 Application is considered the “affidavit” required under

(a)(1). 1 2000) (en banc) (stating that

(e) “not only permits but requires” the court to sua 2 sponte dismiss an in forma pauperis complaint that fails to state a claim). A complaint must meet 3 the requirements of Federal Rule of Civil Procedure 8, which mandates that a complaint include 4 (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 5 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 6 (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 7 8 Fed. R. Civ. P. 8(a). 9 A complaint “must contain sufficient allegations of underlying facts to give fair notice and 10 to enable the opposing party to defend itself effectively.” Starr v. Baca,

(9th 11 Cir. 2011). 12 In this case, the Plaintiff has checked the “Federal question” box on the form Complaint, 13 indicating that the basis for jurisdiction in this court is a federal question. See Compl. at §II (Basis 14 for Jurisdiction), ECF No. 1. Section III of the form Complaint instructs the Plaintiff to “[w]rite a 15 short and plain statement of the claim . . . [and s]tate as brieflty as possible the facts showing that 16 each plaintiff is entitled to damages or other relief sought.” Id. at §III (Statement of Claim). There, 17 the Plaintiff wrote “They have enough doctor’s evidence on my disabilities.” This single sentence 18 does not meet the requirements of Rule 8(a). The Complaint does not contain sufficient allegations 19 of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. 20 Based on the lone statement contained in the Complaint, it appears the Plaintiff is challenging 21 a decision of the Commissioner of the Social Security Administration (“SSA”) regarding disability 22 benefits.2 A prerequisite to bringing a civil action against the SSA, the Plaintiff must exhaust his 23 administrative remedies as set forth in the Social Security Act. See

(g). “Section 24 405(g) provides that a civil action may be brought only after (1) the claimant has been party to a 25 26 2 The court notes that on the date the instant Complaint was filed, the Plaintiff also filed a 27 Complaint for Review of a Social Security Disability or Supplemental Security Income Decision. See Paul Opena Evaristo v. Social Security, Civil Case No. 16-00023. The below-signed judge has 28 also recommended that said case be dismissed. Paul Opena Evaristo v. Social Security, Civil Case No. 16-00024 Order and Report & Recommendation 1 || hearing held by the [Commissioner of Social Security], and (2) the [Commissioner of Social 2 || Security] has made a final decision on the claim.” Bass v. Social Sec. Admin.,

, 833 3 || (9th Cir. 1989). What constitutes a “final decision” is defined through agency regulations rather 4 || than statutory text. See

(a). Generally, ifthe SSA denies an application for disability 5 || benefits, the claimant can request reconsideration of the decision.

(a)(2), 6 || 404.907-404.909 and 404.920. Ifthe claim is denied upon reconsideration, a claimant may request 7 || a hearing before an Administrative Law Judge (“ALJ”). See

(a)(3), 404.930 8 || and 404.933. If the ALJ denies the claim, a claimant may request review of the decision by the 9 || Appeals Council. See

(a)(4) and 404.955. Ifthe Appeals Council declines to 10 || review the ALJ’s decision, the ALJ’s ruling will stand as the final decision, and a claimant may then 11 || request review by the United States District Court. See

(a)(5) and 404.981. 12 In this case, the Plaintiff has not alleged that he exhausted his administrative remedies. The 13 || Plaintiff has not attached a copy of the Commissioner’s final decision. The Plaintiff has not alleged 14 || that he petitioned the Social Security Appeals Council for review, nor has he alleged that the Appeals 15 || Council denied his request for review. The Plaintiff has not attached to the Complaint a copy of the 16 || notice he received from the Appeals Council that his appeal was denied. Because of these 17 || omissions, the court is unable to determine whether the Complaint was timely filed. 18 Accordingly, the court recommends that the Plaintiff's Complaint be dismissed, subject to 19 Plaintiff's ability to amend the complaint to meet the pleading requirements of Rule 8(a) and to show 20 || that he had exhausted his administrative remedies as set forth in

(g). 21 22 & /s/ Joaquin V.E. Manibusan, Jr. 73 J U.S. Magistrate Judge a, 4 Dated: Jul 19, 2016 34 mA 2 NOTICE 26 . . . ww Failure to file written objections to this Report and Recommendation within 27 fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United 28 States District Judge.

(b)(1)(B).