1 2 3 4 5 6 IN THE DISTRICT COURT 7 FOR THE TERRITORY OF GUAM 8 PAUL OPENA EVARISTO, ) CIVIL CASE NO. 16-00023 9 ) Plaintiff, ) 10 ) vs. ) ORDER 11 ) and SOCIAL SECURITY, ) REPORT & RECOMMENDATION 12 ) Defendant. ) 13 ) ) 14 15 ORDER 16 The court has reviewed Plaintiff’s Complaint and his request for a waiver of fees (the 17 “Application”). Based upon his Application, it appears that Plaintiff is qualified to proceed in forma 18 pauperis, without paying the necessary fees as he has stated in his Application that he has a limited 19 monthly income. However, the court orders that his Application to proceed in forma pauperis and 20 thus move forward with this case be denied since it is also recommending below that his case be 21 dismissed without prejudice. 22 REPORT & RECOMMENDATION 23 The court must subject each civil action commenced pursuant to

(a)1 to 24 mandatory screening, and order the dismissal of any claims it finds “frivolous, malicious, failing to 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 state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune 2 from such relief.”

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

, 1126–27 (9th Cir. 3 2000) (en banc) (stating that

(e) “not only permits but requires” the court to sua 4 sponte dismiss an in forma pauperis complaint that fails to state a claim). A complaint must meet 5 the requirements of Federal Rule of Civil Procedure 8, which mandates that a complaint include 6 (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; 7 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 8 (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 9 10 Fed. R. Civ. P. 8(a). 11 A complaint “must contain sufficient allegations of underlying facts to give fair notice and 12 to enable the opposing party to defend itself effectively.” Starr v. Baca,

(9th 13 Cir. 2011). 14 In this case, the Plaintiff’s Complaint suggests he is challenging a decision of the 15 Commissioner of the Social Security Administration (“SSA”) regarding Disability Insurance 16 benefits. See Compl. at §II (Basis for Jurisdiction), ECF No. 1. To state a valid benefits claim, a 17 complaint must give the defendant fair notice of what the plaintiff's claim is and the grounds upon 18 which it rests. 19 Here, the Complaint does not meet the requirements of Rule 8 of the Federal Rules of Civil 20 Procedure. It does not contain a short and plain statement of the claim showing that the Plaintiff is 21 entitled to relief. In fact, Section III of the Complaint – the place in the form complaint that requests 22 the Plaintiff to provide a Statement of Claim – is left completely blank by the Plaintiff. 23 Additionally, as a prerequisite to bringing a civil action against the SSA, the Plaintiff must 24 exhaust his administrative remedies as set forth in the Social Security Act. See

(g). 25 “Section 405(g) provides that a civil action may be brought only after (1) the claimant has been party 26 to a hearing held by the [Commissioner of Social Security], and (2) the [Commissioner of Social 27 Security] has made a final decision on the claim.” Bass v. Social Sec. Admin.,

, 833 28 (9th Cir. 1989). What constitutes a “final decision” is defined through agency regulations rather Onder and Repor & Recommendation 1 || than statutory text. See

(a). Generally, ifthe SSA denies an application for disability 2 || benefits, the claimant can request reconsideration of the decision.

(a)(2), 3 || 404.907-404.909 and 404.920. Ifthe claim is denied upon reconsideration, a claimant may request 4 || a hearing before an Administrative Law Judge (“ALJ”). See

(a)(3), 404.930 5 || and 404.933. If the ALJ denies the claim, a claimant may request review of the decision by the 6 || Appeals Council. See

(a)(4) and 404.955. Ifthe Appeals Council declines to 7 || review the ALJ’s decision, the ALJ’s ruling will stand as the final decision, and a claimant may then 8 || request review by the United States District Court. See

(a)(5) and 404.981. 9 In this case, the Plaintiff has not alleged that he exhausted his administrative remedies. The 10 || Complaint herein claims that the decision of the Commissioner became final on January 27, 2016. 11 || See Compl. at $I (Basis for Jurisdiction), ECF No. 1. The Plaintiff, however, failed to attach a copy 12 || of the Commissioner’s final decision. The Plaintiff has not alleged that he petitioned the Social 13 || Security Appeals Council for review, nor has he alleged that the Appeals Council denied his request 14 || forreview. Neither has the Plaintiff attached to the Complaint a copy of the notice he received from 15 || the Appeals Council that his appeal was denied. Because of these omissions, the court is unable to 16 || determine whether the Complaint was timely filed. 17 Accordingly, the court recommends that the Plaintiff's Complaint be dismissed, subject to 18 || Plaintiff's ability to amend the complaint to meet the pleading requirements of Rule 8(a) and to show 19 || that he had exhausted his administrative remedies as set forth in

(g). 20 21 /s/ Joaquin V.E. Manibusan, Jr. U.S. Magistrate Judge yk Dated: Jul 19, 2016 mA NOTICE 2 Failure to file written objections to this Report and Recommendation within 26 fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United 27 States District Judge.

(b)(1)(B). 28