# Johnson v. Saul

> District Court, S.D. California · June 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10081344

## Case

- **Court:** District Court, S.D. California
- **Decided:** June 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10081344

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are 19 not re-alleged in an amended pleading may be “considered waived if not repled.”
- holding that courts may take judicial 28 notice of dockets in related cases because materials from proceedings in other tribunals are appropriate 1 “While ‘the proper length and level of clarity for a pleading cannot be defined with 2 any great precision,’ Rule 8(a

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JAMES JOHNSON, Case No.: 20-CV-747 JLS (AHG)

12 Petitioner,
ORDER: (1) GRANTING
13 v. PETITIONER’S MOTION TO
PROCEED IN FORMA PAUPERIS,
14 ANDREW M. SAUL, Commissioner,
(2) GRANTING PETITIONER’S
Social Security Administration,
15 MOTION FOR PAGE COUNT
Respondent. WAIVER, (3) DENYING WITHOUT
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PREJUDICE PETITIONER’S
17 MOTION FOR ELECTRONIC
ACCESS, (4) DISMISSING
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WITHOUT PREJUDICE WRITS,
19 (5) DENYING AS MOOT
PETITIONER’S REMAINING
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MOTIONS
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(ECF Nos. 1, 2, 3, 4, 5, 6, 10)
22

23 Presently before the Court are Petitioner James Johnson’s Writs of Mandamus (1 to
24 6) (Redacted) (“Writs,” ECF No. 1), as well as his Application to Proceed in District Court
25 Without Prepaying Fees or Costs (“IFP Motion,” ECF No. 2), Request for Appointment of
26 Counsel (“Counsel Mot.,” ECF No. 3), Ex Parte Motion for Electronic Access and E-mail
27 Noticing (“CM/ECF Mot.,” ECF No. 4), Ex Parte Motion for Page Count and Local Rule
28 Waiver (“Page Count Mot.,” ECF No. 5), Ex Parte Motion for Attorney’s Fees and Costs
1 (“Fee Mot.,” ECF No. 6), and Ex Parte Emergency Motion to Bifurcate Writs 1 to 6
2 (“Bifurcation Mot.,” ECF No. 10). Having carefully considered Petitioner’s Motions, legal
3 arguments, and the applicable law, the Court GRANTS Petitioner’s IFP and Page Count
4 Motions; DENIES WITHOUT PREJUDICE Petitioner’s CM/ECF Motion;
5 DISMISSES WITHOUT PREJUDICE Petitioner’s Writs; and DENIES WITHOUT
6 PREJUDICE AS MOOT Petitioner’s Counsel, Fee, and Bifurcation Motions.
7 IN FORMA PAUPERIS MOTION
8 All parties instituting any civil action, suit, or proceeding in a district court of the
9 United States, except an application for writ of habeas corpus, must pay a filing fee of
10 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s or
11 petitioner’s failure to prepay the entire fee only if he is granted leave to proceed in forma
12 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d
13 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
14 Although the statute does not specify the qualifications for proceeding IFP, the plaintiff’s
15 or petitioner’s affidavit must allege poverty with some particularity. Escobeda v.
16 Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff or petitioner leave to proceed
17 IFP may be proper, for example, when the affidavit demonstrates that paying court costs
18 will result in a plaintiff’s or petitioner’s inability to afford the “necessities of life.” Id. The
19 affidavit, however, need not demonstrate that the plaintiff or petitioner is destitute. Id.
20 Here, Petitioner’s affidavit shows that he earns $930.00 per month in disability, with
21 no other sources of income. See IFP Mot. at 1–2. Petitioner has $100.00 cash, see id. at 2;
22 $2.00 in his checking account, see id.; and a Honda Accord LX worth approximately
23 $1,000.00. See id. at 3. Petitioner is currently homeless, see id. at 4, and his monthly
24 expenses equal his monthly disability income. See id. at 4–5.
25

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See
27
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
28 June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed
1 The Court concludes that Petitioner adequately has demonstrated that paying the
2 $400 filing fee would result in his inability to afford the necessities of life. Accordingly,
3 the Court GRANTS Petitioner’s IFP Motion.
4 PAGE COUNT MOTION
5 Noting that, “[b]y the time the court reviews this case, [he] will likely already be
6 homeless, thus unable to effectively make changes to the filings,” Petitioner requests that
7 the Court “provide a local rule waiver (if any is needed) as it relates to page counts and
8 mundane aspects of brief and writ construction, given Petitioner is severely disabled,
9 limited in abilities, forced Pro Se and the fact the Writ of Mandamus is actually 6-parts (6-
10 Writs).” Page Count Mot. at 1–2.
11 “Although [courts] construe pleadings liberally in their favor, pro se litigants are
12 bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citing
13 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Consequently, the Court is unable—
14 and unwilling—to provide a blanket waiver to the Federal Rules of Civil Procedure and
15 this District’s Local Rules.
16 Further, pursuant to Civil Local Rule 7.1(h) (emphasis added), “[b]riefs or
17 memoranda in support of all motions . . . noticed for the same motion day must not exceed
18 a total of twenty-five (25) pages in length . . . for all such motions without leave of the
19 judge who will hear the motion.” This means that Petitioner’s Writs were limited to a total
20 of twenty-five pages; however, Petitioner’s Writs alone consist of 244 pages, with an
21 additional 926 pages of declarations and exhibits. Particularly given Petitioner’s claim to
22 entitlement to “emergency” relief because “[t]ime is of the [e]ssence,” see, e.g., Writs at 8,
23 26, 87; Bifurcation Motion, Petitioner is encouraged to hew as closely as possible to the
24 District’s page limitations. See infra pages 11–12. Nonetheless, the Court will not reject
25 the Writs as currently filed for failure to comply with these page limits. Accordingly, the
26 Court GRANTS Petitioner’s Page Count Motion, although the Court also counsels
27 Petitioner to be mindful of the Court’s finite resources.
28 / / /
1 CM/ECF MOTION
2 Generally, “[e]xcept as prescribed by local rule, order, or other procedure, the Court
3 has designated all cases to be assigned to the Electronic Filing System.” S.D. Cal. CivLR
4 5.4(a). With respect to pro se litigants, however, “[u]nless otherwise authorized by the
5 court, all documents submitted for filing to the Clerk’s Office . . . must be in legible, paper
6 form.” Office of the Clerk, United States District Court for the Southern District of
7 California, Electronic Case Filing Administrative Policies and Procedures Manual, § 2(b)
8 (Aug. 1, 2019) [hereinafter, “ECF Manual”]. “A pro se party seeking leave to
9 electronically file documents must file a motion and demonstrate the means to do so
10 properly by stating their equipment and software capabilities in addition to agreeing to
11 follow all rules and policies in the CM/ECF Administrative Policies and Procedures
12 Manual.” Id. The manual refers to the Court’s official web site for CM/ECF technical
13 specifications, id. at § 1(i), which include a “[c]omputer running Windows or Macintosh”;
14 “[s]oftware to convert documents from a word processor format to portable document
15 format (PDF),” such as “Adobe Acrobat 7.0 and higher”; “[i]nternet access supporting a
16 transfer rate of 56kb or higher”; a compatible browser, such as “Firefox 15, Internet
17 Explorer 9, and Safari 5.1/6 or later version”; a “[s]canner to image non-computerized
18 documents 400 pixels per inch (ppi)”; and a PACER account. United States District Court,
19 Southern District of California, CM/ECF: General Info, https://www.casd.uscourts.gov/
20 cmecf.aspx#undefined1 (last visited June 8, 2020) [hereinafter, “CM/ECF: General Info”].
21 Petitioner indicates that he “ha[s] access to a computer with internet access and the
22 latest version of Mozilla Firefox as well as an ability to read PDF files” and “an ability to
23 create PDF files at this time.” CM/ECF Mot. at 2. Petitioner also explains that “[he is]
24 indigent (live[s] below the Federal Poverty Guidelines) and live[s] far away from the court
25 house” and “[i]t costs [him] about $25 round trip to drive to the court house each time so
26 [he] ha[s] a genuine need to try and reduce this cost, give it consumes [his] food money.”
27 Id. at 1. Further, “[Petitioner is] also disabled and unable to sit for prolong periods of time,
28 / / /
1 which makes driving to and from the court house difficult and often painful physically.”
2 Id. at 1–2.
3 Although the Court sympathizes with Petitioner’s situation, he has failed to indicate
4 that he has access to all of the hardware and software necessary to participate in CM/ECF.
5 See CM/ECF: General Info. Further, the Court has concerns regarding Petitioner’s
6 continuing access to these resources given that he is now homeless, see, e.g., Writs at 9;
7 IFP Mot. at 4; Page Count Mot. at 1, although the Court recognizes that Petitioner’s
8 homelessness presents its own challenges when it comes to paper filing. Nonetheless,
9 paper filing is the default for pro se litigants, see ECF Manual § 2(b), and it is incumbent
10 on Petitioner to demonstrate that access to CM/ECF is warranted. See id. Accordingly,
11 the Court DENIES WITHOUT PREJUDICE Petitioner’s CM/ECF Motion.
12 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
13 I. Standard of Review
14 Because Petitioner is proceeding IFP, his Writs require a pre-answer screening
15 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Bell-Sparrow v. Am. Arbitration Ass’n, No.
16 19-CV-00997-TSH, 2019 WL 1767203, at *1 (N.D. Cal. Apr. 22, 2019) (screening IFP
17 writ); Banks v. Song, No. 17-CV-1460 JLS (WVG), 2017 WL 4810097, at *1 (S.D. Cal.
18 Oct. 25, 2017) (same); Street v. Arizona, No. CV-11-08009-PCT-NVW, 2011 WL 206143,
19 at *1 (D. Ariz. Jan. 20, 2011) (same); Bird v. Bowen, No. CIVS081088MCECMK, 2008
20 WL 3059466, at *1 (E.D. Cal. Aug. 5, 2008) (same). Under this statute, the Court must
21 sua sponte dismiss a complaint, or any portion of it, which is frivolous, malicious, fails to
22 state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203
23 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). “The purpose of [screening] is ‘to ensure
24 that the targets of frivolous or malicious suits need not bear the expense of responding.’”
25 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.)
26 “The standard for determining whether a plaintiff has failed to state a claim upon
27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
1 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual
2 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
3 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at
4 1121.
5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
6 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
7 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
8 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
9 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
10 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
11 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
12 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.”
13 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June
14 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth
15 in a complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal,
16 556 U.S. at 679). Finally, in deciding whether Petitioner has stated a plausible claim for
17 relief, the Court also may consider exhibits attached to his filing. See Fed. R. Civ. P. 10(c)
18 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
19 all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555
20 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426
21 (9th Cir. 1978) (noting that “material which is properly submitted as part of the complaint
22 may be considered” in ruling on a Rule 12(b)(6) motion to dismiss)).
23 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim-
24 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal
25 interpretation to a pro se complaint, however, a court may not “supply essential elements
26 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673
27 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend if it appears
28 “at all possible that the plaintiff can correct the defect,” unless the court determines that
1 “the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith,
2 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d
3 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir.
4 1990)).
5 II. Petitioner’s Factual Allegations
6 On April 20, 2020, Petitioner filed six “emergency” writs, purportedly on an ex parte
7 basis,2 see Writs at 16, against the Commissioner of the Social Security Administration.
8 See generally id. Petitioner alleges that this Court has federal question jurisdiction, see
9 Writs at 17, as well as mandamus jurisdiction pursuant to 28 U.S.C. § 1361, see Writs at
10 17, and jurisdiction under the Administrative Procedures Act, 5 U.S.C. § 706, see Writs at
11 20, and the All Writs Act, 28 U.S.C. § 1651. See Writs at 20; see also generally id. at
12 22–23.
13 Petitioner’s Writs are lengthy, spanning 244 pages plus an additional 103 exhibits
14 spanning 926 pages. See generally Writs. Nonetheless, the Court attempts to summarize
15 the pertinent factual background:
16 / / /
17
18 2 Petitioner does not cite any authority allowing the Court to rule on the writs ex parte without hearing
from the Commissioner. See generally Writs. “In our adversary system, ex parte motions are disfavored.”
19
Ayestas v. Davis, 584 U.S. __, 138 S. Ct. 1080, 1091 (2018); accord United States v. Thompson, 827 F.2d
20 1254, 1257 (9th Cir. 1987)). Consequently, “opportunities for legitimate ex parte applications are
extremely limited.” Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116-APG,
21 2015 WL 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., Inc., 101 B.R. 191,
193 (C.D. Cal. 1989)). A proper ex parte motion must “address . . . why the regular noticed motion
22 procedures must be bypassed,” i.e., “it must show why the moving party should be allowed to go to the
head of the line in front of all other litigants and receive special treatment.” Mission Power Eng’g Co. v.
23
Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). This requires the moving party to “show that
24 the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to
regular noticed motion procedures” and “that the moving party is without fault in creating the crisis that
25 requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id.

26 Here, even if Petitioner would be irreparably prejudiced by allowing the Commissioner an opportunity to
respond, as discussed below, see infra page 11, Petitioner filed a substantially similar action approximately
27
six months ago, which he voluntarily dismissed. Petitioner refiled the instant Writs less than two months
28 before his second hearing before the ALJ. The Court cannot conclude under these circumstances that
1 Petitioner filed claims for Supplemental Security Income (“SSI”) and Social
2 Security Disability Insurance (“SSDI”) on June 29, 2012. Id. at 42. Petitioner’s SSI claim
3 regarding peripheral neuropathy disability was approved November 22, 2013, id. at 42–43,
4 although the Agency withheld six months of payments for June 2012 through February 1,
5 2013. Id. at 42. The Agency began paying Petitioner’s SSI benefits in January 2014,
6 although the Agency erroneously classified Petitioner as a dependent adult. See id. at 43.
7 The first hearing on Petitioner’s SSDI claims was held on December 20, 2016. Id.
8 at 45. Prior to that date, Petitioner filed subpoena requests so that he might secure vital
9 testimony and arranged for his treating physicians to testify by telephone. Id. At the
10 hearing, Petitioner informed that Administrative Law Judge (“ALJ”) that several records
11 he had submitted were missing from his case file. See id. The ALJ concluded the hearing
12 without addressing Petitioner’s subpoenas or without hearing the testimony of Petitioner’s
13 witnesses. See id. Petitioner’s witnesses can no longer be located. See id. at 53.
14 On July 12, 2017, the ALJ denied Petitioner’s SSDI claims on the grounds that
15 Petitioner was not disabled between the alleged onset date of December 31, 2010, through
16 the date last insured of December 31, 2020. See generally ECF No. 1-9 Ex. 23.
17 Petitioner requested review by the Appeals Council. Writs at 46. On July 20,
18 August 28, and December 7, 2017, Petitioner requested from the Appeals Council the
19 written transcript and audio recording of the hearing. See id.; see also ECF No. 1-6 Exs. 5
20 & 6; ECF No. 1-8 Ex. 19. He received no response. See Writs at 46. Despite not having
21 received his case file, Petitioner filed a provisionary brief on December 14, 2017. See id.;
22 see also ECF No. 1-8 Ex. 18. Eventually, Petitioner received a copy of his case file, which
23 was missing evidence he had submitted, and the hearing transcript. See Writs at 47.
24 Petitioner then filed his official brief with the Appeals Council on August 4, 2018. See id.
25 at 48; see also ECF Nos. 1-4–5 Ex. 4.
26 On October 29, 2018, the Appeals Council remanded Petitioner’s case to the ALJ.
27 See id. at 48; see also generally ECF No. 1-10 Ex. 24. Specifically, the Appeals Council
28 instructed the ALJ to “[c]larify the alleged onset date of disability and further evaluate the
1 nature and severity of the claimant’s medically determinable impediments throughout the
2 entire period at issue” and “[t]o address the claimant’s subpoena requests.” Ex. 24 at 4.
3 As far as Petitioner’s claims of “improper procedures, bias, and misconduct” on the part of
4 the ALJ, the Appeals Council concluded that the ALJ had not abused his discretion. See
5 id.
6 In December 2018, Petitioner received compact discs (“CDs”) containing his case
7 file. See Writs at 48. Petitioner, however, could not access the CDs because he did not
8 have access to a computer with a CD drive; accordingly, he requested a hard copy of his
9 case file on February 19, and March 25, 2019. See id. Again, Petitioner received no
10 response. See id. Eventually, on multiple occasions, Petitioner requested an Electronic
11 Records Express account. Id. at 49. His requests for an account were ignored. See id. He
12 also contacted the Agency regarding gaining access to his case file through his Social
13 Security Online Account, see Writs at 51; ECF No. 1-15 Ex. 52, but he never received a
14 response or access to his account. See Writs at 51.
15 In the meantime, Petitioner received a call on May 7, 2019, requesting to schedule
16 the hearing on remand. See id. at 48; see also ECF No. 1-14 Ex. 46. Petitioner objected
17 both over the phone, see Writs at 48, and again in a follow-up letter. See Writs at 49; Ex.
18 46. He received no response to his objections. See Writs at 49.
19 By letter dated June 11, 2019, Petitioner received a notice of hearing scheduled for
20 October 1, 2019. See id. at 49; see also ECF No. 1-4 Ex. 1. The notice indicated that the
21 Agency intends to call two new witnesses: (1) a medical expert, and (2) a new vocational
22 expert. See Writs at 52. Petitioner objected—both to the notice and to the new experts—
23 and again requested access to his case file. See Writs at 50, 52; see also ECF No. 1-4 Ex.
24 2. On August 8, 2019, Petitioner sent a “final notice” to the Agency, requesting that the
25 hearing be rescheduled and his objections addressed. See Writs at 50; see also ECF No. 1-
26 4 Ex. 3. The second hearing has since been rescheduled for June 18, 2020. See Bifurcation
27 Mot. at 2.
28 Petitioner has filed six “writs”:
1 In the first writ, Petitioner asks the Court to compel the Agency to suspend the
2 second hearing on remand pending this Court’s investigation and approval of Agency
3 procedures and actions. See generally id. at 79–89.
4 In the second writ, Petitioner requests that this Court order that ALJ Eric Benham
5 be removed and replaced because of alleged misconduct. See generally id. at 89–102.
6 In the third writ, Petitioner requests that the Court order the Agency to stop
7 discriminating against Petitioner and to grant him certain accommodations, including
8 approving multiple hearings with disability accommodations, providing Petitioner an
9 Electronic Records Express account and online access to his full case files, allowing
10 Petitioner to appear telephonically at the hearing, and providing printed versions of
11 Petitioner’s second hearing case file and all other Agency and state records. See generally
12 id. at 102–10. Petitioner also requests that the Court order approval of all subpoena
13 requests and witness interrogatory requests, assignment to an adjudication officer. See id.
14 at 109–10.
15 In the fourth writ, Petitioner requests that the Court order the Agency to comply with
16 certain pre-hearing procedures, including assignment to an adjudication officer;
17 determination of the scope of issues, facts, and Petitioner’s objections at least sixty days
18 prior to the second hearing; provision of a written assessment of Petitioner’s claim
19 affirmation needs; approval of all of Petitioner’s subpoena requests and interrogatories;
20 and provision of a new Title II disability review by the original state disability reviewing
21 agency. See id. at 110–31.
22 In the fifth writ, Petitioner asks the Court to compel the ALJ to comply with certain
23 procedures for the second hearing, including reviewing Petitioner’s original ambulatory
24 disability under collateral estoppel; reviewing and settling Petitioner’s Work Credit
25 Eligibility period or Date Last Insured period for potential adjustments based on 2003
26 income; reviewing Petitioner’s case in full compliance in with Appeals Council’s ruling;
27 and adhering to all statutes, regulations, the Hearing, Appeals, and Litigation Law Manual
28 / / /
1 (“HALLEX”), the Program Operations Manual System (“POMS”), case law, and canons.
2 See id. at 131–50.
3 Finally, in the sixth writ, Petitioner requests that the Court enter summary judgment
4 as to Petitioner’s cardio (as of January 1, 2009), peripheral neuropathy (as of May 1, 2010),
5 and bilateral knee (as of January 1, 2009) disabilities and/or order expedited rulings on all
6 settled issues of fact or law that may be appropriate. See id. at 150–243.
7 On October 7, 2019, Petitioner filed a substantially identical action, Smith v. Saul,
8 No. 19-CV-1813 LL (S.D. Cal. filed Oct. 7, 2019) (the “Prior Action”), which was assigned
9 to Magistrate Judge Linda Lopez. Prior Action ECF No. 1.3 On October 18, 2019,
10 Petitioner voluntarily dismissed the Prior Action, See Prior Action ECF No. 8, following
11 Magistrate Judge Lopez’s denial of his motion to file the action under seal. See Prior
12 Action ECF No. 5.
13 III. Analysis
14 A. Federal Rule of Civil Procedure 8
15 Federal Rule of Civil Procedure 8 requires pleadings to state “a short and plain
16 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
17 “Violations of this Rule warrant dismissal, but there are multiple ways that it can be
18 violated.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). “One well-known type
19 of violation is when a pleading says too little—the baseline threshold of factual and legal
20 allegations required was the central issue in the Iqbal line of cases.” Id. (emphasis in
21 original) (citing Iqbal, 556 U.S. at 678). “The Rule is also violated, though, when a
22 pleading says too much.” Id. (emphasis in original) (citing United States ex rel. Cafasso v.
23 Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011); McHenry v. Renne, 84
24 F.3d 1172, 1179–80 (9th Cir. 1996)).
25

26
3 The Court can sua sponte take judicial notice of the docket of the Prior Action. See, e.g., Headwaters,
27
Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (holding that courts may take judicial
28 notice of dockets in related cases because materials from proceedings in other tribunals are appropriate
1 “While ‘the proper length and level of clarity for a pleading cannot be defined with
2 any great precision,’ Rule 8(a) has ‘been held to be violated by a pleading that was
3 needlessly long, or a complaint that was highly repetitious, or confused, or consisted of
4 incomprehensible rambling.’” Cafasso, 637 F.3d at 1059 (quoting 5 Charles A. Wright &
5 Arthur R. Miller, Federal Practice & Procedure § 1217 (3d ed. 2010)). Consequently, the
6 Ninth Circuit has affirmed dismissals under Rule 8 where pleadings were “verbose,”
7 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and
8 comprised of “incomprehensible rambling.” See id. at 1058–59 (collecting cases).
9 Rule 8(a) applies equally to writs for mandamus. See, e.g., Banks v. Song, No. 17-
10 CV-1460 JLS (WVG), 2017 WL 4810097, at *4 (S.D. Cal. Oct. 25, 2017). Here,
11 Petitioner’s six writs stretch over 244 verbose and highly repetitious pages. See generally
12 Writs. Including exhibits, Petitioner’s Writs span over 1150 pages. See generally ECF
13 No. 1. This greatly exceeds the length of the complaint in Cafasso, which was an unwieldly
14 733-page pleading. See 637 F.3d at 1059. “[D]istrict courts are busy enough without
15 having to penetrate a tome approaching the magnitude of War and Peace to discern a
16 plaintiff’s claims and allegations.” See Cafasso, 637 F.3d at 1059 (emphasis in original).
17 Dismissal of the Writs is therefore warranted under Rule 8(a). See, e.g., Cafasso, 637 F.3d
18 at 1058–59.
19 B. Subject-Matter Jurisdiction
20 “Federal district courts are courts of limited jurisdiction that ‘may not grant relief
21 absent a constitutional or valid statutory grant of jurisdiction’ and are ‘presumed to lack
22 jurisdiction in a particular case unless the contrary affirmatively appears.’” Cooper v.
23 Tokyo Elec. Power Co., 990 F. Supp. 2d 1035, 1038 (S.D. Cal. 2013) (quoting A-Z Int’l v.
24 Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)). Petitioner alleges that this Court has federal
25 question jurisdiction, as well as jurisdiction under the Mandamus and Venue Act of 1961,
26 28 U.S.C. § 1361; the Administrative Procedures Act (“APA”), 5 U.S.C. § 702; and the
27 All Writs Act, 28 U.S.C. § 1651(a). See Writs at 17–18, 19–21. The Court analyzes each
28 alleged basis for its jurisdiction in turn.
1 1. Federal Question Jurisdiction
2 Under 28 U.S.C. § 1331, “[t]he district courts shall have original jurisdiction of all
3 civil actions arising under the Constitution, laws, or treaties of the United States.” Pursuant
4 to the Social Security Act (“SSA”), however, “[n]o action against . . . the Commissioner
5 of Social Security . . . shall be brought under section 1331 . . . of title 28 to recover on any
6 claim arising under [Title 42, Chapter 7,] subchapter [II].” 42 U.S.C. § 405(h). “The
7 Supreme Court has read Section 405(h) broadly to encompass any claim for which the SSA
8 provides both the ‘standing and substantive basis.’” Taylor v. Astrue, No. C-07-05549
9 EDL, 2008 WL 3823718, at *1 (N.D. Cal. Aug. 13, 2008) (quoting Weinberger v. Salfi, 422
10 U.S. 749, 766 (1975)) (citing Hecker v. Ringer, 466 U.S. 602, 614–18 (1984)); accord
11 Stevenson v. Astrue, No. C 06-05422 JSW, 2007 WL 9711964, at *3 (N.D. Cal. May 1,
12 2007) (“The Supreme Court has interpreted the term ‘arising under,’ as used
13 in Section 405(h), to require that ‘virtually all legal attacks’ be channeled through the
14 administrative process.”) (citing Shalala v. Ill. Council on Long Term Care, 529 U.S. 1, 13
15 (2000); Heckler, 466 U.S. 602; Weinberger, 422 U.S. 749).
16 “The Ninth Circuit, following Weinberger and its progeny, has articulated two tests
17 ‘to determine whether claims arise under’ the Social Security Act.” Stevenson, 2007 WL
18 9711964, at *4 (quoting Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1112 (9th Cir.
19 2003)). “The first test examines whether the claims are inextricably intertwined with a
20 [Social Security] benefits determination.” Id. (quoting Kaiser, 347 F.3d at 1112) (internal
21 quotation marks omitted) (alteration in original). “If so, they arise under the Social
22 Security Act.” Id. (citing Kaiser, 347 F.3d at 1112). “The second test examines whether
23 the claims are such that both the standing and the substantive basis for the presentation of
24 the claims is the Social Security Act.” Id. (internal quotation marks omitted) (citing
25 Kaiser, 347 F.3d at 1112). “Again, if the answer to that question is yes, the claims ‘arise
26 under’ the act.” Id. (citing Kaiser, 347 F.3d at 1112).
27 “Although P[etitioner]’s claim of a procedural due process violation arguably ‘arises
28 under’ the Constitution, [see, e.g., Writs at 26 n.38,] . . . the crux of [Petitioner’s Writs] is
1 with irregularities in the processing of h[is] individual claim for benefits and . . . []he seeks
2 to remedy that allegedly flawed process as it applied to h[im].” See id. “Thus, the Court
3 concludes that the allegations in the [Writs] are inextricably intertwined with the
4 determination of [Petitioner’s] claim for benefits, and further concludes that the Social
5 Security Act provides the standing and substantive basis for presenting the claims to this
6 Court.” See id.; see also Korb v. Colvin, No. 4:12-CV-03847-JST, 2014 WL 2514616, at
7 *6 (N.D. Cal. June 4, 2014) (“[T]he Court concludes that [the plaintiff]’s first (violation of
8 the APA), second (wrongful seizure of property), and fourth (declaratory and injunctive
9 relief) claims all ‘arise under’ the Social Security Act because they are ‘inextricably
10 intertwined’ with a Social Security benefits determination.”); Taylor, 2008 WL 3823718,
11 at *2 (“[T]he Appeals Council’s remand provides [the plaintiff] additional process, unlike
12 cases that required reopening to address similar issues. Therefore, Plaintiff’s allegation of
13 the undue delay of adjudicating his case does not raise a colorable constitutional claim that
14 supports federal question jurisdiction.”). Accordingly, “the exhaustion requirements
15 of Section 405(g) apply.” See Stevenson, 2007 WL 9711964, at *4; accord Korb, 2014
16 WL 2514616, at *6 (“[The plaintiff] was required to exhaust those claims administratively
17 before filing a federal action.”) (citing Johnson v. Shalala, 2 F.3d 918, 920 (9th Cir. 1993)).
18 Pursuant to 42 U.S.C. § 405(g), “[a]ny individual, after any final decision of the
19 Commissioner of Social Security made after a hearing to which he was a party, irrespective
20 of the amount in controversy, may obtain a review of such decision by a civil action
21 commenced within sixty days after the mailing to him of notice of such decision or within
22 such further time as the Commissioner of Social Security may allow.” Section 405(g)
23 “provides federal courts with jurisdiction to review decisions of the [Commissioner] which
24 are ‘final.’” Hironymous v. Bowen, 800 F.2d 888, 894 (9th Cir. 1986). “The finality
25 condition has been held to include a nonwaivable requirement of presentation of the claim
26 and a waivable requirement of exhaustion of administrative remedies.” Id. (citing Mathews
27 v. Eldridge, 424 U.S. 319, 328 (1976)).
28 / / /
1 Petitioner disclaims jurisdiction under Section 405(g), see Writs at 10–11, and
2 therefore does not attempt to show either exhaustion or that his compliance with that
3 requirement be excused. See generally Writs. “In light of the . . . remand [of Petitioner’s
4 case to the ALJ], P[etitioner] has not exhausted h[is] administrative recourse.” See
5 Coleman v. Barnhart, No. C 03-0089 SI, 2003 WL 22722816, at *3 (N.D. Cal. Nov. 12,
6 2003). Accordingly, the Court lacks jurisdiction over the Writs under Section 405(g). See,
7 e.g., Hironymous, 800 F.2d at 894.
8 2. Mandamus
9 Pursuant to 28 U.S.C. section 1361, “[t]he district courts shall have original
10 jurisdiction of any action in the nature of mandamus to compel an officer or employee of
11 the United States or any agency thereof to perform a duty owed to the plaintiff.”
12 “[M]andamus [is] appropriate only when a party demonstrate[s] that the [Commissioner]
13 ‘owe[d] him a clear nondiscretionary duty.’” Briggs v. Sullivan, 886 F.2d 1132, 1142 (9th
14 Cir. 1989) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)) (fifth alteration in
15 original). As Petitioner acknowledges, see, e.g., Writs at 25, “[m]andamus is an
16 ‘extraordinary remedy,’” Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1998), that “is available
17 only when ‘(1) the plaintiff’s claim is clear and certain; (2) the duty is ministerial and so
18 plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.’”
19 Lowry v. Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003) (quoting Or. Natural Res. Council
20 v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995)).
21 Petitioner has failed to establish his entitlement to mandamus. Not only is
22 Petitioner’s claim not clear or certain, see supra Section III.A, but it is not clear that any
23 of the six writs seek to compel action pursuant to a clear, nondiscretionary duty owed to
24 Petitioner. Writs one, three, four, and five all request that the Court order the ALJ to
25 comply with certain procedural requirements, none of which are clearly nondiscretionary.
26 See generally Writs at 79–89, 102–50. For example, it does not appear that Petitioner is
27 entitled to review by an adjudication officer pursuant to 20 C.F.R. § 416.1443, which
28 provision implements a “test” procedure to be instituted in certain sites, with participants
1 to be “assigned randomly.” See 20 C.F.R. § 416.1443(a)(2). And while Petitioner is
2 entitled to a photocopy of his case file, see HALLEX I-2-1-35(B)(2), the Ninth Circuit has
3 concluded that HALLEX does not “impose[] judicially enforceable duties.” See Lowry,
4 329 F.3d at 1023 (citing Moore v. Apfel, 216 F.3d 864, 868–69 (9th Cir. 2000)). And
5 Petitioner’s request that the Court order the ALJ to rule on his objections prior to the
6 hearing is not merited under the regulations, pursuant to which the ALJ has discretion to
7 make a decision on any objections “either at the hearing or in writing before the hearing.”
8 See 20 C.F.R. § 404.939 (emphasis added).
9 The second writ requests that the Court remove the ALJ because of alleged bias. See
10 generally Writs at 89–102. There are regulations imposing a duty of impartiality, see
11 Lowry, 329 F.3d at 1023 (citing 20 C.F.R. §§ 404.940, 416.1440),4 but there exist other
12 adequate remedies pursuant to those regulations. Sections 404.940 and 416.1440, for
13 example, provide:
14 An administrative law judge shall not conduct a hearing if he or
she is prejudiced or partial with respect to any party or has any
15
interest in the matter pending for decision. If you object to the
16 administrative law judge who will conduct the hearing, you must
notify the administrative law judge at your earliest opportunity.
17
The administrative law judge shall consider your objections and
18 shall decide whether to proceed with the hearing or withdraw. . . .
If the administrative law judge does not withdraw, you may, after
19
the hearing, present your objections to the Appeals Council as
20 reasons why the hearing decision should be revised or a new
hearing held before another administrative law judge.
21

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26

27 4 To the extent Petitioner seeks to disqualify the ALJ pursuant to 28 U.S.C. § 144, see, e.g., Writs at 94,
28 that provision, by its plain language, applies only to district court judges, not administrative law judges.
1 20 C.F.R. §§ 404.940, 416.1440. Petitioner already has objected to the ALJ, see, e.g., Writs
2 at 94; should the ALJ decide not to withdraw, Petitioner’s recourse is to object to the
3 Appeals Council, not this Court.5 See 20 C.F.R. § 404.940.
4 Finally, writ six requests that the Court supplant its judgment for that of the ALJ by
5 entering summary judgment as to certain of Petitioner’s claims for disability. This is not a
6 proper use of mandamus. See, e.g., Am. Fid. Fire Ins. Co. v. U.S. Dist. Ct. for N. Dist. of
7 Cal., 538 F.2d 1371, 1374 (9th Cir. 1976) (“[M]andamus . . . may not appropriately be used
8 merely as a substitute for the appeal procedure.”) (quoting Roche v. Evaporated Milk Ass’n,
9 319 U.S. 21, 26 (1943)); see also, e.g., Wood v. Comm’r of Soc. Sec., No. 6:15-CV-1487-
10 ORL-DNF, 2017 WL 11113418, at *3 (M.D. Fla. Mar. 31, 2017) (dismissing with
11 prejudice writ for mandamus because “[t]he remedy of mandamus is not ‘a substitute for
12 an appeal’” and the “[p]laintiff is free to argue under Section 405(g) that she was wrongly
13 denied a particular kind of hearing that the case should be remanded for a new hearing,
14 certain evidence should have been requested and/or considered by the agency, and the case
15 should be assigned to another ALJ”) (quoting Plekowski v. Ralston-Purina Co., 557 F.2d
16 1218, 1220 (5th Cir. 1977)); Manigault v. Colvin, No. 1:11-CV-0793-MHS-JFK, 2013 WL
17 12157943, at *2 (N.D. Ga. Dec. 13, 2013) (“Mandamus may not ‘be used as a substitute
18 for appeal, or to control the decision of the trial court in discretionary matters.’”) (quoting
19 Johnson v. Wilbur, 375 Fed. App’x 960, 965 (11th Cir. 2010)), report and recommendation
20 adopted, 2014 WL 12621204 (N.D. Ga. Feb. 18, 2014), aff’d, 609 F. App’x 982 (11th Cir.
21 2015). Indeed, allowing mandamus here “would frustrate the purpose of 42 U.S.C.
22 § 405(g) and (h), by which Congress provided the sole method of review of Social Security
23 claims.” See Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984) (citing Ass’n of Am.
24 Med. Colls. v. Califano, 569 F.2d 101, 111 (D.C.Cir. 1977)).
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26

27 5 Indeed, Petitioner previously has followed this procedure, and the Appeals Council determined following
28 the first hearing that the ALJ had not abused his discretion by not withdrawing from Petitioner’s case. See
1 As in Lowry, the Court is “not unsympathetic to [Petitioner]’s predicament.” See
2 329 F.3d at 1022. “Unfortunately for [Petitioner, however], not every agency shortcoming
3 is subject to correction in the courts.” See id. For the foregoing reasons, the Court therefore
4 concludes that it lacks mandamus jurisdiction over the Writs.
5 3. Administrative Procedure Act
6 Under the Administrative Procedure Act (“APA”), “[a] person suffering legal wrong
7 because of agency action, or adversely affected or aggrieved by agency action within the
8 meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The
9 Supreme Court, however, has held that “the APA does not afford an implied grant of
10 subject-matter jurisdiction permitting federal judicial review of agency action.” See
11 Califano v. Sanders, 430 U.S. 99, 107 (1977). Accordingly, the APA alone does not suffice
12 to confer subject-matter jurisdiction over the Writs. See, e.g., Kim Phuong Nguyen v.
13 Astrue, No. 10CV1927-IEG JMA, 2011 WL 2470518, at *4 (S.D. Cal. June 21, 2011)
14 (“[T]he Administrative Procedures Act is not an independent basis of subject matter
15 jurisdiction.”) (citing Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 457–58 (1999)).
16 4. All Writs Act
17 Pursuant to the All Writs Act, “all courts established by Act of Congress may issue
18 all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to
19 the usages and principles of law.” 28 U.S.C. § 1651(a). Similarly to the APA, the All
20 Writs “Act does not enlarge th[e Court’s] jurisdiction.” Clinton v. Goldsmith, 526 U.S.
21 529, 535, 119 S. Ct. 1538, 1542, 143 L. Ed. 2d 720 (1999) (citing Penn. Bureau of Corr.
22 v. U.S. Marshals Serv., 474 U.S. 34, 41 (1985); 16 Charles Alan Wright, Arthur R. Miller,
23 & Edward H. Cooper, Federal Practice and Procedure § 3932, p. 470 (2d ed. 1996); 19 J.
24 Moore & G. Pratt, Moore’s Federal Practice § 204.02[4] (3d ed. 1998)). Accordingly, the
25 All Writs Act alone also fails to confer subject-matter jurisdiction over the Writs.
26 / / /
27 / / /
28 / / /
1 REMAINING MOTIONS
2 In light of the dismissal of Petitioner’s Writs, see supra at pages 5–18, the Court
3 DENIES WITHOUT PREJUDICE AS MOOT Petitioner’s Counsel, Fee, and
4 Bifurcation Motions. In any event, Petitioner’s Counsel and Fee Motions are premature.
5 CONCLUSION
6 In light of the foregoing, the Court GRANTS Petitioner’s IFP and Page Count
7 Motions (ECF Nos. 2 and 5, respectively); DENIES WITHOUT PREJUDICE
8 Petitioner’s CM/ECF Motion (ECF No. 4); DISMISSES WITHOUT PREJUDICE
9 Petitioner’s Writs (ECF No. 1) for failure to state a claim pursuant to 28 U.S.C.
10 § 1915(e)(2); and DENIES WITHOUT PREJUDICE AS MOOT Petitioner’s Counsel,
11 Fee, and Bifurcation Motions (ECF Nos. 3, 6, and 10, respectively).
12 Petitioner MAY FILE amended writs that cure the deficiencies noted above within
13 thirty (30) days of the electronic docketing of this Order. Any amended filing must be
14 complete in itself without reference to Petitioner’s original Writs. Any claim not re-alleged
15 in Petitioner’s amended writs will be considered waived. See S.D. Cal. CivLR 15.1; Hal
16 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
17 (“[A]n amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693
18 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are
19 not re-alleged in an amended pleading may be “considered waived if not repled.”). Should
20 Petitioner fail to file his amended writs within thirty (30) days, the Court will enter a final
21 Order dismissing this civil action based both on Petitioner’s failure to state a claim upon
22 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and his failure to prosecute
23 in compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d
24 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix
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1 complaint, a district court may convert the dismissal of the complaint into dismissal of
2 entire action.”’).
3 IT IS SO ORDERED.
4
5 Dated: June 14, 2020 (een
6 on. Janis L. Sammartino
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081344. Public record. Not legal advice.