Chaderick Ingram v. Commissioner of Social Securit ( 2010 )

FILED
NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHADERICK A. INGRAM, No. 09-17527
Plaintiff - Appellant, D.C. No. 2:09-cv-01712-KJM
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY and VAN NGUYEN,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Magistrate Judge, Presiding **
Submitted October 19, 2010 ***
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Chaderick A. Ingram appeals pro se from the district court’s judgment
dismissing his action against the Commissioner of Social Security and a Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security Administration employee alleging improper supplemental security income
withholding and improper assignment of a representative payee. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo dismissals for lack of
subject matter jurisdiction and for failure to state a claim. Kildare v. Saenz, 325
F.3d 1078, 1082, 1085 (9th Cir. 2003). We affirm.
The district court properly dismissed Ingram’s constitutional claims because
the United States has not expressly waived its sovereign immunity. See Gilbert v.
DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Moreover, Ingram cannot pursue
a Bivens action related to a social security benefits determination. See Schweiker v.
Chillicky, 487 U.S. 412, 414 (1988) (damages unavailable in action challenging
Social Security determination); Butler v. Apfel, 144 F.3d 622, 624 (9th Cir. 1998)
(per curiam).
The district court properly dismissed the claims arising under the Social
Security Act for lack of subject matter jurisdiction because Ingram failed to
exhaust his administrative remedies before seeking judicial review. See 42 U.S.C.
§ 405(g) (judicial review only available after “any final decision of the
Commissioner of Social Security made after a hearing”); see also Bass v. Soc. Sec.
Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (a claimant’s failure to
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exhaust administrative remedies under § 405(g) deprives a district court of
jurisdiction).
The district court properly dismissed Ingram’s state-law tort claims because
Ingram failed to sue the proper party. See Allen v. Veterans Admin., 749 F.2d
1386, 1388 (9th Cir. 1984) (“[T]he United States is the sole party which may be
sued for personal injuries arising out of the negligence of its employees.”). Even if
Ingram had properly asserted these claims against the United States, the district
court would have no jurisdiction to consider them because Ingram failed to exhaust
administrative remedies under the Federal Tort Claims Act. See Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000).
We construe the dismissal for failure to exhaust administrative remedies as
without prejudice. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 (9th
Cir. 2007) (concluding that dismissal without prejudice is proper where plaintiff
failed to exhaust administrative remedies).
Ingram’s remaining contentions are unpersuasive.
AFFIRMED.
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