United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's Application to appear in
forma pauperis (Doc. 2). Plaintiff, appearing pro
se, has tendered what is docketed as an unsigned
complaint (Doc. 1),  naming the Social Security Administration
as Defendant. Upon due consideration, I respectfully
recommend that the complaint be dismissed without
prejudice, with leave to amend.
complaint reads, in substantive entirety:
“L5-S1-Herniated disc w/ sciatica pain, muscle spasms,
Bipolar Depression, Anxiety, Thoracic fracture w/ pain and
muscle spasms.” (Doc. 1 at 4). No. relief is sought.
The complaint is accompanied by a signed application to
proceed as a pauper (Doc. 2). The application lists no form
of income of any kind over the last 12 months, no debts or
liabilities of any kind, and no assets, save for a 1992
courts may allow an individual to proceed in forma
pauperis if that person declares in an affidavit that he
“is unable to pay [filing] fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Before a
plaintiff is permitted to proceed in forma pauperis,
the court must review the complaint to determine whether it
is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against an
immune defendant. Id. § 1915(e)(2).
(ii) of § 1915(e)(2)(B) authorizes dismissal of an
indigent's case on the same terms as Federal Rule of
Civil Procedure 12(b)(6) authorizes dismissal for cases in
general-when the complaint “fails to state a claim on
which relief may be granted.” Dismissal pursuant to
§ 1915(e)(2)(B)(ii) is governed by the same familiar
standards that govern dismissal under Rule 12(b)(6).
Thorpe v. Little, 804 F.Supp.2d 174, 180 (D. Del.
1915(e)(2)(B)(ii) and Rule 12(b)(6) test the sufficiency of
the plaintiff's complaint. Because Rule 8(a)(2) requires
the plaintiff to “show” that she is entitled to
relief, a mere “blanket assertion of entitlement to
relief” will not do. Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 556 n. 3 (2007). To survive
dismissal under § 1915(e)(2)(B)(ii) and Rule 12(b)(6),
Plaintiff must plead facts which, “accepted as true,
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is “plausible on its face” when its factual
content permits a “reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In evaluating a
plaintiff's complaint under this standard, the court must
accept all well pleaded factual allegations as true and
construe them in the light most favorable to the plaintiff.
Id.; Ironworkers Local Union 68 v.
AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352,
1359 (11th Cir. 2011). Legal conclusions devoid of factual
support are not entitled to an assumption of truth.
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir.
2011) (citing Iqbal, 556 U.S. at 679).
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam). See also Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam). However, pro se litigants
must still conform their pleadings to the Federal Rules of
Civil Procedure, Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007), and the court will not “serve as
de facto counsel for a party or ... rewrite an otherwise
deficient pleading in order to sustain an action.”
GJR Investments, Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),
overruled on other grounds as recognized in
Randall v. Scott, 610 F.3d 701, 706 (11th Cir.
complaint is plainly deficient in that it does not contain
any allegations to state a claim against Defendant and seeks
no relief. Assuming Plaintiff is attempting to state a claim
of entitlement to disability benefits or supplemental
security income, she cannot pursue such an application in
this court in the first instance. A district court's
jurisdiction to review claims arising under the Social
Security Act is governed by 42 U.S.C. § 405(g), which
permits review only “after any final decision of the
Commissioner of Social Security made after a hearing.”
42 U.S.C. § 405(g); Cash v. Barnhart, 327 F.3d
1252, 1255 (11th Cir. 2003); Weinberger v. Salfi,
422 U.S. 749, 765, 95 S.Ct. 2457, 2466- 67, 45 L.Ed.2d 522
(1975) (explaining the regulations “specify that the
finality required for judicial review is achieved only after
the further steps of a hearing before an administrative law
judge and, possibly, consideration by the Appeals
Council”). There is no allegation that Plaintiff has
pursued and exhausted her claim before the agency and, absent
a final decision by Defendant, this Court lacks jurisdiction.
To the extent Plaintiff can state a timely claim for review
of a final decision on an application for benefits, she
should be given leave to amend her complaint to so state.
complaint fails to state a cognizable claim within the
jurisdiction of this Court. Therefore, I RESPECTFULLY
RECOMMEND that the Court DISMISS
this case without prejudice, with 21 days
leave to amend.
Notice to Parties
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. A party's failure to file written
objections waives that party's right to challenge on
appeal any unobjected-to factual finding or legal conclusion