1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DESTINY MONIQUE CLARK, ) Case No.: 1:21-cv-1022 JLT ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S MOTIONS ) TO PROCEED IN FORMA PAUPERIS 13 v. ) (Docs. 2, 4) ) 14 KILOLO KIJAKAZI,1 ) ORDER DIRECTING THE CLERK TO ISSUE Acting Commissioner of Social Security, ) SUMMONS AND CASE DOCUMENTS, AND 15 ) COMPLETE E-SERVICE Defendant. ) 16 ) ORDER STAYING THE ACTION ) 17

18 Destiny Monique Clark seeks to proceed in forma pauperis with an action for judicial review of 19 the administrative decision denying an application for Social Security benefits. Pending before the 20 Court are the complaint and the motion to proceed in forma pauperis. For the following reasons, the 21 Court finds service of the complaint is appropriate. 22 I. Proceeding in forma pauperis 23 The Court may authorize the commencement of an action without prepayment of fees “by a 24 person who submits an affidavit that includes a statement of all assets such person . . . possesses [and] 25 that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court 26

27 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social Security. (See Doc. 1 at 1.) The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of 28 1 reviewed the financial status affidavit (Doc. 2) and amended application (Doc. 4), and finds the 2 requirements of 28 U.S.C. § 1915(a) are satisfied. Therefore, Plaintiff’s request to proceed in forma 3 pauperis is GRANTED. 4 II. Screening Requirement 5 When an individual seeks to proceed in forma pauperis, the Court is required to review the 6 complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or 7 fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant 8 who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A plaintiff’s claim is 9 frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or 10 not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 11 25, 32-33 (1992). 12 III. Pleading Standards 13 General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 14 pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the 15 claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may 16 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). The purpose of the 17 complaint is to give the defendant fair notice of the claims, and the grounds upon which the complaint 18 stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, 19 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers 20 labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 21 factual enhancement.

22 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague 23 and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 24 268 (9th Cir. 1982). The Court clarified further, 25 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when 26 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The 27 plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint 28 1 pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ 2

3 Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should 4 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal 5 conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a 6 complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 7 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). 8 IV. Discussion and Analysis 9 Plaintiff seeks review of a decision by the Commissioner of Social Security denying disability 10 benefits. (Doc. 1.) The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides: 11 Any individual, after any final decision of the Commissioner made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of 12 such decision by a civil action commenced within sixty days after the mailing to him of such decision or within such further time as the Commissioner may allow. Such action 13 shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business . . . The court shall 14 have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, 15 with or without remanding the cause for a rehearing.

16 Id. Except as provided by statute, “[n]o findings of fact or decision of the Commissioner shall be 17 reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h). The regulations 18 “operate as a statute of limitations setting the time period in which a claimant may appeal a final 19 decision of the Commissioner.” Berrigan v. Astrue, 2010 U.S. Dist. LEXIS 115390, at * 4-5 (E.D. Cal. 20 Oct. 29, 2010) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Matthews v. Eldridge, 424 21 U.S. 319, 328 n. 9 (1976)). 22 Plaintiff alleges the Appeals Council responded to a request for review of the decision denying 23 benefits on October 22, 2020, at which time the decision of the administrative law judge became the 24 final decision of the Commissioner. (Doc. 1 at 1.) Plaintiff was granted an extension of time to file a 25 civil action on June 3 2021. (Id. at 2.) Plaintiff reports the civil action was due thirty-five days from 26 the date of service of that notice, or no later than July 8, 2021. (See id.) Because Plaintiff initiated this 27 action by filing a complaint prior to that date, the request for judicial review was timely under 42 28 U.S.C. § 405(g). 1 V. Conclusion and Order 2 Plaintiff’s complaint states a cognizable claim for review of the administrative decision denying 3 Social Security benefits. Based upon the foregoing, the Court ORDERS: 4 1. Plaintiff’s motions to proceed in forma pauperis (Doc. 2, 4) are GRANTED; 5 2. The Clerk of Court is DIRECTED to issue summons as to Kilolo Kijakazi, the Acting 6 Commissioner of Social Security; 7 3. The Clerk of Court is DIRECTED to issue and serve Plaintiff with the Order regarding 8 Consent and the Consent Form; and 9 4. The Clerk of Court SHALL deliver to the Commissioner of Social Security 10 Administration and the United States Attorney’s Office at their designated email addresses a notice of 11 electronic filing of the action along with the summons and complaint. The Commissioner has agreed 12 not to raise a defense of insufficient service of process if provided with notice of a complaint as 13 detailed in this order. 14 5. After service, the matter will remain STAYED pursuant to General Order 615, until the 15 administrative record is filed or further order of the Court lifting the stay. 16 17 IT IS SO ORDERED.

18 Dated: July 23, 2021 _ /s/ Jennifer L. Thurston 19 CHIEF UNITED STATES MAGISTRATE JUDGE

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