(SS) Hafer v. United States

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 Case No. 1:22-cv-00972-JLT-EPG

DECHERI HAFER,

11 FINDINGS AND RECOMMENDATIONS

Plaintiff, RECOMMENDING THAT THE

12 COMMISSIONER OF SOCIAL SECURITY’S

v. MOTION TO DISMISS BE GRANTED; AND

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THAT PLAINTIFF’S CLAIMS AGAINST

COMMISSIONER OF SOCIAL THE UNITED STATES AND THE SOCIAL

14 SECURITY, et al., SECURITY ADMINISTRATION BE

15 DISMISSED

Defendants.

16 (ECF No. 1, 25).

17 OBJECTIONS, IF ANY, DUE WITHIN

FOURTEEN (14) DAYS

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19 Plaintiff De Cheri Hafer, proceeding pro se and in forma pauperis, filed this action on

20 July 22, 2022, alleging various claims related to the denial of Plaintiff’s social security benefits.

21 Before the Court is the Commissioner of Social Security’s1 motion to dismiss under Federal Rule

22 of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil

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24 1 As the Commissioner’s motion states, “Plaintiff purports to name defendants besides the Acting Commissioner of

Social Security, including the United States and the Social Security Administration (Doc. No. 1 at p. 2), the Acting

25 Commissioner is the only proper defendant in actions for review of benefits decisions. 42 U.S.C. § 405(g).” (ECF

No. 25, p. 2 n1). Accordingly, “[t]he Commissioner brings this Motion to Dismiss as to all defendant’s named in the

26 complaint.” (Id.). To the extent Plaintiff’s complaint asserts claims against the Social Security Administration (the

“SSA”) and United States regarding her claim for benefits, the Court agrees that the Commissioner (or Acting

27 Commissioner) is the only proper defendant. See 20 C.F.R. § 422.210(d); see infra p. 13. However, pursuant to the

Court’s prior order (see ECF No. 24), the Court will screen Plaintiff’s complaint with respect to Plaintiff’s claims

28 against the United States and the Social Security Administration in accordance with §1915(e)(2)(B).

1 Procedure 12(b)(c) for failure to state claim. (ECF No. 25). For the reasons stated below, the

2 Court will recommend that the Commissioner’s motion be granted, and that Plaintiff’s claims

3 against the Commissioner be dismissed for lack of subject matter jurisdiction

4 The Court has also screened the remainder of Plaintiff’s claims based in tort and

5 violations of federal law against the Social Security Administration and the United States. The

Court finds that Plaintiff’s complaint fails to state any cognizable claim against the United States

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or the Social Security Administration. For the reasons stated below, the Court will recommend

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that Plaintiff’s claims against the United States and the Social Security Administration be

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dismissed without leave to amend.

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I. BACKGROUND

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Plaintiff initiated this action by filing a complaint on July 22, 2022, alleging various

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claims against the SSA and the United States related to the denial of Plaintiff’s social security and

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disability benefits. (ECF No. 1). On August 19, 2022, the Court entered an order granting

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Plaintiff’s motion to proceed in forma pauperis. (ECF No. 9). Because Plaintiff’s complaint

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partly seeks review of an administrative decision of the Commissioner of Social Security

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regarding Plaintiff’s claim for social security and disability benefits, the Court issued a summons

16 to the Commissioner. (ECF No. 10). As in other cases where a Plaintiff challenges an

17 administrative decision regarding social security and/or disability benefits, the summons and

18 complaint were served electronically on the Commissioner via the Court’s E-service program.

19 (ECF No. 12).

20 On November 8, 2022, the Commissioner filed an ex parte request to extend the deadline

21 to respond to Plaintiff’s complaint. (ECF No. 14). The Court granted the request and ordered that

22 the Commissioner file a response by December 19, 2022. (ECF No. 15).

23 Plaintiff thereafter requested entry default against the United States and the SSA. (ECF

Nos. 20 & 22). The undersigned issued findings and recommendations recommending that

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Plaintiff’s requests be denied, explaining that:

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Because Plaintiff proceeds in forma pauperis, the Court is required to issue and

26 effectuate all process in this case. However, the Court is also required to screen

Plaintiff’s complaint pursuant to § 1915(e)(2)(B). The Court has not yet screened

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Plaintiff’s complaint to the extent that Plaintiff seeks relief other than review of an

28 administrative decision by the Commissioner of Social Security regarding

1 disability benefits. As such, the Court has not yet issued summons or directed

service to the Social Security Administration or the United States. Accordingly,

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the Court finds that entry of default against the Social Security Administration or

3 the United States is premature, and the Court will recommend that Plaintiff’s

request for entry of default be denied.

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(ECF No. 24, p. 3). On January 9, 2023, District Judge Jennifer L. Thurston entered an order

5 adopting the findings and recommendations. (ECF No. 28).

6 On December 12, 2022, the Commissioner of Social Security filed a motion to dismiss

7 Plaintiff’s claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the

8 grounds that Plaintiff’s complaint fails to assert subject matter jurisdiction and fails to state a

9 claim. (ECF No. 25). On January 9, 2023, Plaintiff filed a brief opposing the Commissioner’s

10 motion. (ECF No. 29). The matter was taken under submission without a hearing. (See ECF No.

11 11, p. 3).

12 II. SUMMARY OF PLAINTIFF’S COMPLAINT

Plaintiff’s complaint alleges claims against the United States and the SSA. Plaintiff’s

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complaint asserts two potential grounds for subject matter jurisdiction: 28 U.S.C. § 1346 and the

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Due Process Clause of the Fourteenth Amendment. (ECF No. 1, p. 3).

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Plaintiff’s complaint alleges the following:

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Plaintiff was denied her rights to social security benefits and disability benefits. Between

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September 1, 2019, and October 1, 2020, Plaintiff received $200.00 per month in social security

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benefits. During that period, Plaintiff also received $837.00 per month in social security disability

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benefits. Plaintiff alleges that she demanded an in-person hearing at the SSA office. Plaintiff

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claims that she was entitled to a trial before a decision was reached regarding Plaintiff’s benefits

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pursuant to the Due Process Clause of the Fourteenth Amendment. (Id. at 6).

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Plaintiff’s first cause of action asserts that defendants violated Plaintiff’s right to due

23 process because defendants failed to provide Plaintiff with notice of a hearing prior to reducing

24 Plaintiff’s benefits. (Id. at 12).

25 Plaintiff’s second cause of action asserts that defendants violated Plaintiff’s right to due

26 process by denying Plaintiff the right to object at a trial regarding the reduction of Plaintiff’s

27 benefits. (Id. at 13).

28 Plaintiff’s third cause of action asserts that she is now homeless and unable to pay rent

1 because defendants reduced Plaintiff’s benefits in violation of her rights. For that reason, Plaintiff

2 seeks $200,000.00 per day until Plaintiff’s benefits are restored and paid back in full. (Id. at 14).

3 Plaintiff’s fifth2 cause of action asserts that defendants have deprived her of the right to

4 enter the public SSA office since December 1, 2020, in violation of 42 U.S.C. § 2000A. Further,

5 Plaintiff alleges that the SSA is discriminating against Plaintiff because she is African American,

and Plaintiff does not receive the same benefits as individuals who receive their full social

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security benefit each month. (Id. at 15).

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Plaintiff’s sixth cause of action seeks to hold defendants liable for malice because

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defendants maliciously, knowingly, willfully, and intentionally violated Plaintiff’s rights and

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deprived Plaintiff of the full amount of her benefits. (Id. at 16).

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III. MOTION TO DISMISS

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A. The Commissioner’s Motion to Dismiss

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On December 12, 2022, the Commissioner filed a motion to dismiss Plaintiff’s claims

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pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter

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jurisdiction and for failure to state a claim. (ECF No. 25).

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The Commissioner’s motion provides the following factual summary, which is supported

16 by declarations and supporting exhibits obtained from agency personnel:

17 Title II Claim

18 Plaintiff applied for disability benefits under Title II of the Social Security Act

(Declaration of Christianne Voegele [“Voegele Decl.], ¶ 3(a)). The agency denied

19 Plaintiff’s applications at the initial and reconsideration levels (Voegele Decl., ¶

3(a); Exs. 1-2). Plaintiff then filed a request for a hearing before an ALJ (Voegele

20 Decl., ¶ 3(b); Ex. 3), and submitted an objection to appearing by video

teleconference (Voegele Decl., ¶ 3(b); Ex. 4). On February 5, 2015, a hearing was

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scheduled for April 22, 2015 (Voegele Decl., ¶ 3(b); Ex. 5).

22 The notice of hearing was returned as undelivered on February 11, 2015 (Voegele

Decl., ¶ 3(b); Ex. 6). Two more notices of hearing were issued in April 2015

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(Voegele Decl., ¶ 3(b); Exs. 7-8). Plaintiff did not appear at the April 22, 2015

24 hearing (Voegele Decl., ¶ 3(b)). Accordingly, an ALJ issued a notice of dismissal

(Voegele Decl., ¶ 3(b); Ex. 9). Plaintiff did not request Appeals Council review,

25 nor did the Appeals Council take action to review the dismissal on its own

(Voegele Decl., ¶ 3(c)).

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Title XVI Claim

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28 2 Plaintiff’s complaint does not list a fourth cause of action.

1 Plaintiff applied for and was found disabled for purposes of Title XVI disability

benefits in October 2003 (Declaration of Joseph Pollock [“Pollock Decl.], ¶ 4).

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The agency determined that Plaintiff was not entitled to Title XVI benefits during

3 a period of incarceration during 2020 (Pollock Decl., ¶ 5-6). Upon her release from

incarceration, Plaintiff was put back into pay status. After Plaintiff’s release, she

4 did not receive an Optional State Supplement (OSS) for claimants who do not have

access to cooking and food storage facilities (Pollock Decl., ¶ 6-7). Plaintiff did

5 not receive this OSS because claimants are required to verify their living situation

(Pollock Decl., ¶ 7). Plaintiff requested review of the amount of her SSI benefits

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(Pollock Decl., ¶ 8). The agency denied Plaintiff’s request on August 4, 2021

7 (Pollock Decl., ¶ 8). Since the August 2021 denial, the agency has made repeated

efforts to reach Plaintiff regarding her living situation to ensure that her OSS is

8 correctly calculated, but the agency has been unable to contact her (Pollock Decl.,

¶ 9). Plaintiff has not sought review from an ALJ or the Appeal Council related to

9 her Title XVI benefits (Pollock Decl., ¶ 10).

10 (Id. p. 2-3).

11 The Commissioner argues that the Court lacks subject matter jurisdiction to review

12 Plaintiff’s claims regarding her Title II and Title XVI benefits because neither claim received a

13 final decision from the Commissioner after a hearing and, thus, Plaintiff failed to exhaust her

administrative remedies prior to seeking judicial review. (Id. at 5). Moreover, the Commissioner

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argues that Plaintiff’s claims regarding various violations of her due process rights are conclusory

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and fail to state any facts alleging a due process violation. (Id. at 6).

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B. Plaintiff’s Opposition

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On January 9, 2023, Plaintiff filed a brief generally opposing the Commissioner’s motion

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to dismiss as untimely.3 (ECF No. 29, p. 4). According to Plaintiff, the deadline for a responsive

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pleading by the Commissioner was October 20, 2022. (Id.) For that reason, Plaintiff argues that

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the Court is without jurisdiction to hear the Commissioner’s motion to dismiss. (Id. at 9).

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IV. LEGAL STANDARDS

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A. Federal Rule of Civil Procedure 12(b)(1)

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“Dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is appropriate if the

24 complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject

25 matter jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d

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27 3 Plaintiff’s brief lodges numerous objections to the Court’s prior orders regarding Plaintiff’s request for entry of

default. (See e.g., ECF No. 29). Plaintiff also objects to several administrative actions performed by the Clerk of

28 Court and adjudication of this case by Judge Thurston. (Id.)

1 981, 984-85 (9th Cir. 2008). A defendant may challenge subject matter jurisdiction by either a

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facial or a factual attack. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “A ‘facial’

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attack accepts the truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their

4 face to invoke federal jurisdiction.’ Id. (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035,

5 1039 (9th Cir. 2004)). “A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s factual

6 allegations, usually by introducing evidence outside the pleadings.” Id. (internal citations

7 omitted).

8 “When the defendant raises a factual attack, the plaintiff must support her jurisdictional

9 allegations with ‘competent proof,’ under the same evidentiary standard that governs in the

10 summary judgment context.” Leite, 749 F.3d at 1121 (internal citations omitted). “The plaintiff

11 bears the burden of proving by a preponderance of the evidence that each of the requirements for

subject-matter jurisdiction has been met.” Id. “In resolving a factual attack on jurisdiction, the

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district court may review evidence beyond the complaint without converting the motion to

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dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039.

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However, a “[j]urisdictional finding of genuinely disputed facts is inappropriate when the

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jurisdictional issue and substantive issues are so intertwines that the question of jurisdiction is

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dependent on the resolution of factual issues going to the merits’ of an action.” Id. at 1039

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(quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)); see also Leite,

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749 F.3d at 1121-22, 1222 n.3 (the court may resolve disputed factual issues regarding the

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existence of jurisdiction unless those factual disputes are “intertwined with an element of the

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merits of the plaintiff's claim.”). In those cases, the motion to dismiss for lack of subject matter

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jurisdiction must be converted to a motion for summary judgment. See Safe Air for Everyone, 372

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F.3d at 1040.

23 Here, the Commissioner has presented outside documents that clearly attack the factual

24 basis for Plaintiff’s allegation of subject matter jurisdiction, rather than the substantive merits of

25 Plaintiff’s claims that she was wrongfully denied benefits or otherwise discriminated against. For

26 the purposes of the Commissioner’s motion to dismiss on jurisdictional grounds, the Court has

27 taken judicial notice of these documents and declarations. See infra, p. 8 n5. Moreover, Plaintiff

28 has not alleged that she exhausted her administrative remedies, nor does she dispute the exhibits

1 offered by the Commissioner. Therefore, the Court is not required to convert the Commissioner’s

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motion to dismiss into a motion for summary judgment. See Anderson v. Astrue, 2008 WL

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4506606, at * 2 (E.D. Cal. Oct. 7, 2008) (exhaustion of administrative remedies or timeliness of

4 plaintiff’s administrative request not “inextricably intertwined” with the merits of plaintiff’s

5 complaint contesting her entitlement to benefits).

6 B. Federal Rule of Civil Procedure 12(b)(6)

7 In considering a motion to dismiss, the Court must accept all allegations of material fact in

8 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). “[T]he court must construe

9 the complaint in the light most favorable to the plaintiff, taking all [of the plaintiff’s] allegations

10 as true and drawing all reasonable inferences from the complaint in [the plaintiff’s] favor.” Doe v.

11 United States, 419 F.3d 1058, 1062 (9th Cir. 2005).

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

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complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The first step in testing the

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sufficiency of the complaint is to identify any conclusory allegations. Id. at 679. “Threadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A]

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plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels

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and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

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After assuming the veracity of all well-pleaded factual allegations, the second step is for

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the court to determine whether the complaint pleads “a claim to relief that is plausible on its

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face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A claim is facially plausible

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when the plaintiff “pleads factual content that allows the court to draw the reasonable inference

23 that the defendant is liable for the misconduct alleged.” Id. The standard for plausibility is not

24 akin to a “probability requirement,” but it requires “more than a sheer possibility that a defendant

25 has acted unlawfully.” Id. Pleadings of pro se plaintiffs “must be held to less stringent standards

26 than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

27 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

28 //

1 V. DISCUSSION

2 A. Timeliness of Motion to Dismiss

3 As an initial matter, the Court will address Plaintiff’s contention that the Commissioner’s

4 motion to dismiss is untimely. (See ECF No. 29, p. 9). On August 19, 2022, the Commissioner

5 was electronically served with the summons and complaint. (ECF Nos. 10, 12). On that same day,

the Court issued the scheduling order. (ECF No. 11). The Court’s scheduling order specifically

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grants the Commissioner an additional 30 days to file its response. (Id. at 2 n1). The scheduling

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order also provides that any “motion to dismiss shall be filed within 90 days of service of the

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complaint.” (Id. at 3). Further, “[a]ny other requests for modification of this briefing schedule

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must be made by written stipulation or motion[.]” (Id.) At the time the Commissioner was served

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with the summons and complaint, the deadline to file a response was November 20, 2022.

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However, on November 8, 2022, the Court granted the Commissioner’s motion to extend the

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deadline for response until December 19, 2022. (ECF No. 15). The Commissioner filed its motion

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to dismiss on December 12, 2022. (ECF No. 25). Therefore, the Commissioner’s motion to

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dismiss was timely filed.

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B. Judicial Notice of Administrative Proceedings

16 The Commissioner’s motion includes as exhibits administrative letters sent from the

17 Social Security Agency to Plaintiff regarding administrative decisions and notifying Plaintiff how

18 and when to appeal. (See 25-1, p. 5-7; 25-2, p. 5-50). For the purposes of determining the factual

19 issue of whether the Court has jurisdiction over Plaintiff’s challenge regarding her benefits claim,

20 the Court will take sua sponte judicial notice of the attached exhibits.

21 Under Federal Rule of Evidence 201, a Court may take judicial notice of an adjudicative

22 fact that is “not subject to reasonable dispute because it: (1) is generally known within the trial

23 court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court has the power to

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grant judicial notice sua sponte. Fed. R. Evid. 201(c)(1). “[A] court may take judicial notice of

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records and reports of administrative bodies.” Mack v. South Bay Beer Distrib., Inc., 798 F.2d

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1279, 1282 (9th Cir. 1986) (internal quotation marks and citation omitted).

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Here, the Commissioner has attached copies of letters and records sent from the Social

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1 Security Administration to Plaintiff. The Court finds that the accuracy of these documents, which

2 were prepared by an administrative body, cannot reasonably be questioned. Further, the Court

3 only takes judicial notice of the documents to the extent that they demonstrate an adjudicative

4 fact, i.e., whether or not Plaintiff exhausted her remedies, and not for the truth of the matter

5 asserted, i.e., whether or not Plaintiff was wrongfully denied benefits.

C. Subject Matter Jurisdiction

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The Commissioner moves to dismiss Plaintiff’s complaint for lack of subject matter

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jurisdiction. Section 405(g) of the Social Security Act provides for limited judicial review of an

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administrative decision by the Commissioner of Social Security:

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Any individual, after any final decision of the Commissioner of Social Security

10 made after a hearing to which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil action commenced

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within sixty days after the mailing to him of notice of such decision or within such

12 further time as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g). The Court is thus limited to review after a final decision as the administrative

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level. Califano v. Sanders, 430 U.S. 99, 108 (1977) (“This provision clearly limits judicial review

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to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’”).

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“A final decision has two elements: (1) presentment of the claim to the Commissioner, and (2)

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complete exhaustion of administrative remedies.” Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir.

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1993). Discretionary decisions based on regulations promulgated by the SSA, such as the denial

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of a claimant’s petition to reopen a prior determination or the denial of an untimely hearing

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request, are generally not available for judicial review. See Dexter v. Colvin, 731 F.3d 977, 980

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(9th Cir. 2013) (“Cases arising under the Social Security Act generally are not subject to review

21 unless they challenge a ‘final decision of the Secretary made after a [statutorily mandated

22 hearing.’”) (quoting Califano, 430 U.S. at 108).

23 However, “[a]n exception to this [final decision] rule exists for ‘any colorable

24 constitutional claim of due process violation that implicates a due process right either to a

25 meaningful opportunity to be heard or seek reconsideration of an adverse benefits

26 determination.’” Dexter, 731 F.3d at 980 (quoting Klemm v. Astrue, 543 F.3d 1139, 1144 (9th

27 Cir. 2008)). “A ‘mere allegation of a due process violation’ is not a colorable constitutional

28 claim.” Klemm, 543 F.3d at 1144 (quoting Anderson v. Babbitt, 230 F.3d 1158, 1163 (9th Cir.

1 2000)). “[T]he claim must be supported by ‘facts sufficient to state a violation of substantive or

2 procedural due process.’” Id.

3 In addition to the framework provided by Section 405(g), federal jurisdiction is further

4 limited by Section 405(h), which provides that:

The findings and decision of the Commissioner of Social Security after a hearing

5 shall be binding upon all individuals who were parties to such hearing. No findings

of fact or decision of the Commissioner of Social Security shall be reviewed by

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any person, tribunal, or governmental agency except as herein provided. No action

7 against the United States, the Commissioner of Social Security, or any other

officer or employee thereof shall be brought under section 1331 or 1346 of title 28

8 to recover on any claim arising under this subchapter.

9 42 U.S.C. § 405(h) (emphasis added). The Supreme Court broadly interprets the phrase “arising

under” to include claims “in ‘which both standing and the substantive basis for the presentation’

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of the claim is the Social Security Act.” Hooker v. United States Dept’t of Health and Human

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Servs., 858 F.2d 525, 529, 528-30 (1988) (plaintiffs could not hold the United States liable under

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the Federal Tort Claims Act, 28 U.S.C. § 1346(b), in action arising from the wrongful termination

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of disability benefits).

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The Court finds that Plaintiff did not obtain a final decision from the Commissioner

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regarding her Title II and Title XVI claims. See Johnson, F.3d 918 at 921 (“A final decision has

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two elements: (1) presentment of the claim to the Commissioner, and (2) complete exhaustion of

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administrative remedies.”). Thus, to the extent that Plaintiff’s complaint challenges an

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administrative decision by the Commissioner regarding a claim for benefits, the Court finds that

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Plaintiff failed to exhaust her administrative remedies, and that this Court lacks subject matter

20 jurisdiction.

21 As for Plaintiff’s challenge to the denial of her application for Title II Child Disability

22 Benefits, Plaintiff did not obtain a final decision from the Commissioner within the meaning of

23 Section 405(g) because Plaintiff’s request for a hearing was dismissed by the ALJ after Plaintiff

24 failed to appear at the hearing. (ECF No. 25-2, p. 49). Further, Plaintiff did not seek review by the

25 Appeals Council of the ALJ’s decision to dismiss Plaintiff’s request. (Id. at 3). Indeed, Plaintiff’s

26 complaint does not allege that she contested the agency determination, nor does she allege that

27 she has exhausted administrative remedies. See Thompson v. McCombe, 99 F.3d 352, 353 (9th

Cir. 1996) (“A party invoking the federal court’s jurisdiction has the burden of proving the actual

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1 existence of subject matter jurisdiction.”). Thus, Plaintiff failed to exhaust her administrative

2 remedies regarding her Title II claim. See Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992)

3 (“[Plaintiff] was notified of the hearing, but he refused to attend. . .[b]y refusing to attend the

4 hearing, [Plaintiff] waived his opportunity for a hearing and he failed to exhaust the

5 administrative remedy upon which judicial review depends.”).

As for Plaintiff’s challenge to the reduction of her Title XVI Supplemental Security

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Income benefits, Plaintiff did not obtain a final decision from the Commissioner within the

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meaning of Section 405(g) because Plaintiff has not yet requested a hearing before an ALJ or

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otherwise sought review from the Appeals Council. (ECF No. 25-1, p. 2-3). Thus, Plaintiff has

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failed to exhaust her administrative remedies regarding her Title XVI claim.

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Moreover, Plaintiff fails to allege a colorable constitutional claim for violation of due

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process in connection to her benefits claims that would waive her failure to exhaust. Plaintiff’s

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complaint only provides “mere allegations” that the SSA reduced Plaintiff’s benefits without

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providing Plaintiff an opportunity to be heard at a hearing or to lodge objections. While Plaintiff

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alleges that she requested an “in-person hearing,” Plaintiff does not allege that this request was

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arbitrarily denied. In fact, the documents provided by the Commissioner, which are subject to

16 judicial notice by this court, indicate that Plaintiff requested a hearing regarding her Title II claim

17 on February 19, 2014, and that the request was dismissed after Plaintiff failed to attend. (See ECF

18 No. 25-2, p. 14, 49). As for Plaintiff’s Title XVI claim, the evidence indicates that Plaintiff has

19 not requested a hearing despite the agency’s efforts to contact Plaintiff. (See ECF No. 25-1, p. 2-

20 3).

21 Therefore, to the extent Plaintiff’s claims challenge the Commissioner’s administrative

22 decisions regarding Plaintiff’s benefits claims, the Court lacks subject matter jurisdiction over this

23 action. Califano, 430 U.S. at 108 (Section 405(g) “clearly limits judicial review to a particular

type of agency action, a ‘final decision of the Secretary made after a hearing’”).

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D. Plaintiff’s Other Claims

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To the extent Plaintiff’s complaint asserts claims based in tort and violations of federal

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law against the Commissioner, the Court finds that the Court lacks subject matter jurisdiction

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because those claims arise under the Social Security Act.

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1 Here, Plaintiff’s third and sixth causes of action seek to impose tort liability based on the

2 alleged violations of Plaintiff’s due process rights. These claims are substantively based on

3 Plaintiff’s challenge to an administrative decision regarding her disability benefits. Therefore, the

4 Court lacks subject matter jurisdiction over Plaintiff’s tort claims because those claims arise

5 under the Social Security Act. See 42 U.S.C. § 405(h) (“No action against the United States, the

Commissioner of Social Security, or any other officer or employee thereof shall be brought under

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section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.”); see also

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Courtney v. Comm’r of Soc. Security, 2021 WL 1105162, at *7 (E.D. Cal. Mar. 23, 2021)

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(“Congress has waived sovereign immunity over tort claims against the United States for personal

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injury, death, or property damage. But § 405(h) ‘specifically deprives [this court] of subject

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matter jurisdiction over claims arising under 28 U.S.C. § 1346(b) when they also arise under Title

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II of the Social Security Act.’”) (internal citations omitted) (quoting Geschke v. Soc. Security

12

Admin., 2007 WL 1140281, at *11 (W.D. Wash. Apr. 17, 2007)).

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Plaintiff’s fifth cause of action alleges that the SSA discriminated against Plaintiff by

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reducing her benefits and depriving her of the right to enter the SSA office in violation of the

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Civil Rights Act. These claims also arise under the Social Security Act because they are

16 substantively based on Plaintiff’s challenge to an administrative decision regarding her claim for

17 benefits. Therefore, the Court lacks jurisdiction over Plaintiff’s federal question claims because

18 those claims also arise under the Social Security Act.

19 Thus, because the Court finds that it lacks jurisdiction to address Plaintiff’s claims, the

20 Court will recommend that the Commissioner’s motion to dismiss be granted, and that Plaintiff’s

21 claims against the Commissioner related to Plaintiff’s Title II and Title XVI disability benefits be

22 dismissed without prejudice as to Plaintiff fully exhausting her administrative remedies. Further,

23 to the extent Plaintiff’s complaint asserts claims based in tort and violations of federal law against

the Commissioner, the Court recommends that those claims be dismissed for lack of subject

24

matter jurisdiction.

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V. SCREENING

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Pursuant to the Court’s prior order, the Court will now screen Plaintiff’s complaint to the

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extent that it asserts claims against the SSA and the United States.

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1 As Plaintiff is proceeding in forma pauperis, the Court may screen the complaint under 28

2 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid,

3 the court shall dismiss the case at any time if the court determines that the action or appeal fails to

4 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The Court must

5 dismiss a complaint or portion thereof if the detainee has raised claims that are legally “frivolous

or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

7

As explained above, the SSA and the United States are not the proper defendants in an

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action challenging an administrative decision by the Commissioner of Social Security because the

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SSA and the United States are subject to sovereign immunity. See 20 C.F.R. § 422.210(d); see

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also Henderson v. Colvin, No. 6:14-CV-1053-PA, 2015 WL 6598713, at *1 (D. Or. Oct. 29,

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2015) (citing Matthews v. Eldridge, 424 U.S. 319, 327 (1976)) (“Sovereign immunity protects the

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United States and its agencies from suit unless there is a waiver [and] [t]he United States has

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waived sovereign immunity as to the Commissioner's final decisions denying Social Security

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benefits, allowing private parties to bring actions for judicial review under 42 U.S.C. § 405(g) and

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405(h) of the Social Security Act.”). Therefore, to the extent that Plaintiff’s complaint asserts

16 claims against the SSA and the United States that may only be asserted against the

17 Commissioner, the Court recommends that those claims be dismissed for lack of subject matter

18 jurisdiction. See Mills v. United States, 742 F.3d 400, 404 (9th Cir. 2014) (“Suits against the

19 federal government are barred for lack of subject matter jurisdiction unless the government

20 expressly and unequivocally waives its sovereign immunity.”).

21 To the extent Plaintiff asserts claims against the SSA and the United States for violations

22 of state tort law or federal law, the Court finds, for the reasons explained above, that it lacks

23 subject matter jurisdiction over those claims because they arise under the Social Security Act. See

42 U.S.C. § 405(h) (“No action against the United States, the Commissioner of Social Security, or

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any other officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to

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recover on any claim arising under this subchapter.”). Therefore, the Court recommends that

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Plaintiff’s claims regarding violations of state tort law or federal law against the SSA and the

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United States be dismissed.

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1 VI. CONCLUSION AND RECOMMENDATIONS

2 The Court recommends that the Commissioner’s motion to dismiss be granted, and that

3 Plaintiff’s claims against the Commissioner be dismissed without prejudice as to Plaintiff fully

4 exhausting her administrative remedies. However, to the extent Plaintiff’s complaint asserts

5 claims based in tort and violations of federal law against the Commissioner, the Court

recommends that those claims be dismissed with prejudice and without leave to amend.

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The Court has also screened Plaintiff’s complaint and recommends that Plaintiff’s claims

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against the SSA and the United States be dismissed for lack of subject matter jurisdiction.

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Further, the Court recommends that Plaintiff’s claims against the SSA and the United States be

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dismissed with prejudice and without leave to amend.

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Dismissal of a pro se complaint without leave to amend is appropriate where any

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opportunity to amend the complaint would be futile. Lopez v. Smith, 203 F.3d 1122, 1127 (9th

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Cir. 2000) (“a district court should grant leave to amend even if no request to amend the pleading

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was made, unless it determines that the pleading could not possibly be cured by the allegation of

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other facts.”). Here, no additional facts could cure the deficiencies in Plaintiff’s complaint. As

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discussed above, some of the claims asserted in Plaintiff’s complaint may only be asserted against

16 the Commissioner. Further, to the extent Plaintiff asserts claims for violations of state tort and

17 federal law against the Commissioner, the SSA, and the United States, the Court lacks jurisdiction

18 because those claims arise under the Social Security Act and may not be brought under Section

19 1331 or Section 1346. Dismissal with prejudice and without leave amend is thus appropriate.

20 Based on the foregoing, IT IS HEREBY RECOMMENDED that:

21 1. The Commissioner’s motion to dismiss be granted, and that Plaintiff’s claims against the

22 Commissioner related to Plaintiff’s Title II and Title XVI disability benefits be dismissed

23 for lack of subject matter jurisdiction, without prejudice as to Plaintiff fully exhausting her

administrative remedies. Further, to the extent Plaintiff’s complaint asserts claims based in

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tort and violations of federal law against the Commissioner, the Court recommends that

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those claims be dismissed for lack of subject matter jurisdiction with prejudice and

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without leave to amend.

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2. That Plaintiff’s claims against the SSA and the United States related to an administrative

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1 decision by the Commissioner regarding Plaintiffs Title I] and Title XVI disability

2 benefits be dismissed for lack of subject matter jurisdiction with prejudice and without

3 leave to amend.

4 3. That Plaintiffs claims against the SSA and the United States related to violations of state

5 tort law or federal law be dismissed for lack of subject matter jurisdiction with prejudice

6 and without leave to amend.

7 These findings and recommendations will be submitted to the United States district judge

8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

9 (14) days after being served with these findings and recommendations, Plaintiff may file written

objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

8 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

2 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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14 | ITIS □□ ORDERED.

| pated: _Mareh 5, 2023 heey

16 UNITED STATES MAGISTRATE JUDGE

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