The opinion
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6 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 PRISCILLA C. RIVAS,
11 Plaintiff, No. C 23-03324 WHA
12 v.
13 KILOLO KIJAKAZI, ACTING ORDER DENYING LEAVE
COMMISSIONER OF THE SOCIAL TO AMEND
14 SECURITY ADMINISTRATION,
15 Defendant.
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17 A prior order granted defendant’s motion to dismiss (Dkt. No. 17). That order dismissed
18 the action under Rule 12(b)(1) for failure to exhaust because there was no final decision of the
19 Commissioner of Social Security subject to review under 42 U.S. Code Section 405(g). With
20 respect to plaintiff’s assertion that her claims should proceed independent of her request for
21 judicial review under Section 405(g), the order held that dismissal under Rule 12(b)(1) would
22 still be warranted because plaintiff characterized those claims as part of her request for judicial
23 review and, even if asserted separately, they would not survive dismissal under Rule 12(b)(6).
24 But the order allowed plaintiff to seek leave to amend by motion to plead those claims
25 separately from a request for judicial review with additional facts to cure identified defects (id.
26 at 3). This order follows full briefing and finds plaintiff’s motion for leave to amend suitable
27 for disposition on the papers under Civil Local Rule 7-1(b). The hearing is hereby VACATED.
1 Rule 15(a)(2) provides that leave to amend shall be freely given “when justice so
2 requires.” “When considering whether to grant leave to amend, a district court should consider
3 several factors including undue delay, the movant’s bad faith or dilatory motive, repeated
4 failure to cure deficiencies by amendments previously allowed, undue prejudice to the
5 opposing party, and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th
6 Cir. 2020) (citing Foman vy. Davis, 371 U.S. 178, 182 (1962)). “Futility of amendment can, by
7 itself, justify the denial of a motion for leave to amend. If no amendment would allow the
8 complaint to withstand dismissal as a matter of law, courts consider amendment futile.”
9 Kroessler v. CVS Health Corp., 977 F.3d 803, 815 (9th Cir. 2020) (internal quotation and
10 citations omitted).
11 Plaintiffs motion essentially rehashes the prior dismissal for failure to exhaust without
12 focusing on the claims for which the prior order invited amendment. Critically, plaintiff has
5 13 not incorporated any new facts to cure defects flagged in that order and defendant’s opposition.
14 Her proposed amended complaint merely strikes text from her original complaint (see Dkt.
3 15 No. 18-3). As defendant observes, “‘Plaintiff added no facts from which the Court could infer
a 16 that ‘she was denied a benefit of a Social Security Administration program solely by reason of
3 17 her disability’ to cure her Rehabilitation Act claim, added ‘no facts from which the judge could
18 infer that the procedural safeguards available to her were insufficient’ to cure her due process
19 claim, and still fails to ‘state under what authority her theory of liability lies’ for her “systemic
20 disability abuse continuation’ claim” (Opp. 4 (citing Dkt. No. 17 at 3)). Because plaintiff has
21 failed to demonstrate that the proposed amended complaint corrects deficiencies identified in
22 the prior order, amendment would be futile. As such, plaintiff's motion for leave to amend is
23 DENIED. Judgment shall be entered accordingly.
24 IT IS SO ORDERED.
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26 Dated: January 29, 2024.
27 [ Al = Prone
ILLIAM ALSUP
28 UNITED STATES DISTRICT JUDGE