(SS) Hafer v. United States ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 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 13 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 18 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 23 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 6 or the Social Security Administration. For the reasons stated below, the Court will recommend 7 that Plaintiff’s claims against the United States and the Social Security Administration be 8 dismissed without leave to amend. 9 I. BACKGROUND 10 Plaintiff initiated this action by filing a complaint on July 22, 2022, alleging various 11 claims against the SSA and the United States related to the denial of Plaintiff’s social security and 12 disability benefits. (ECF No. 1). On August 19, 2022, the Court entered an order granting 13 Plaintiff’s motion to proceed in forma pauperis. (ECF No. 9). Because Plaintiff’s complaint 14 partly seeks review of an administrative decision of the Commissioner of Social Security 15 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 24 Plaintiff’s requests be denied, explaining that: 25 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 27 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, 2 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. 4 (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 13 complaint asserts two potential grounds for subject matter jurisdiction: 28 U.S.C. § 1346 and the 14 Due Process Clause of the Fourteenth Amendment. (ECF No. 1, p. 3). 15 Plaintiff’s complaint alleges the following: 16 Plaintiff was denied her rights to social security benefits and disability benefits. Between 17 September 1, 2019, and October 1, 2020, Plaintiff received $200.00 per month in social security 18 benefits. During that period, Plaintiff also received $837.00 per month in social security disability 19 benefits. Plaintiff alleges that she demanded an in-person hearing at the SSA office. Plaintiff 20 claims that she was entitled to a trial before a decision was reached regarding Plaintiff’s benefits 21 pursuant to the Due Process Clause of the Fourteenth Amendment. (Id. at 6). 22 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 6 security benefit each month. (Id. at 15). 7 Plaintiff’s sixth cause of action seeks to hold defendants liable for malice because 8 defendants maliciously, knowingly, willfully, and intentionally violated Plaintiff’s rights and 9 deprived Plaintiff of the full amount of her benefits. (Id. at 16). 10 III. MOTION TO DISMISS 11 A. The Commissioner’s Motion to Dismiss 12 On December 12, 2022, the Commissioner filed a motion to dismiss Plaintiff’s claims 13 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter 14 jurisdiction and for failure to state a claim. (ECF No. 25). 15 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 21 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 23 (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)). 26 Title XVI Claim 27 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). 2 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 6 (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 14 argues that Plaintiff’s claims regarding various violations of her due process rights are conclusory 15 and fail to state any facts alleging a due process violation. (Id. at 6). 16 B. Plaintiff’s Opposition 17 On January 9, 2023, Plaintiff filed a brief generally opposing the Commissioner’s motion 18 to dismiss as untimely.3 (ECF No. 29, p. 4). According to Plaintiff, the deadline for a responsive 19 pleading by the Commissioner was October 20, 2022. (Id.) For that reason, Plaintiff argues that 20 the Court is without jurisdiction to hear the Commissioner’s motion to dismiss. (Id. at 9). 21 IV. LEGAL STANDARDS 22 A. Federal Rule of Civil Procedure 12(b)(1) 23 “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 26 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 2 facial or a factual attack. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “A ‘facial’ 3 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 12 district court may review evidence beyond the complaint without converting the motion to 13 dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. 14 However, a “[j]urisdictional finding of genuinely disputed facts is inappropriate when the 15 jurisdictional issue and substantive issues are so intertwines that the question of jurisdiction is 16 dependent on the resolution of factual issues going to the merits’ of an action.” Id. at 1039 17 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)); see also Leite, 18 749 F.3d at 1121-22, 1222 n.3 (the court may resolve disputed factual issues regarding the 19 existence of jurisdiction unless those factual disputes are “intertwined with an element of the 20 merits of the plaintiff's claim.”). In those cases, the motion to dismiss for lack of subject matter 21 jurisdiction must be converted to a motion for summary judgment. See Safe Air for Everyone, 372 22 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 2 motion to dismiss into a motion for summary judgment. See Anderson v. Astrue, 2008 WL 3 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 12 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The first step in testing the 13 sufficiency of the complaint is to identify any conclusory allegations. Id. at 679. “Threadbare 14 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 15 suffice.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] 16 plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels 17 and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 18 Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 19 After assuming the veracity of all well-pleaded factual allegations, the second step is for 20 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 21 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A claim is facially plausible 22 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 6 grants the Commissioner an additional 30 days to file its response. (Id. at 2 n1). The scheduling 7 order also provides that any “motion to dismiss shall be filed within 90 days of service of the 8 complaint.” (Id. at 3). Further, “[a]ny other requests for modification of this briefing schedule 9 must be made by written stipulation or motion[.]” (Id.) At the time the Commissioner was served 10 with the summons and complaint, the deadline to file a response was November 20, 2022. 11 However, on November 8, 2022, the Court granted the Commissioner’s motion to extend the 12 deadline for response until December 19, 2022. (ECF No. 15). The Commissioner filed its motion 13 to dismiss on December 12, 2022. (ECF No. 25). Therefore, the Commissioner’s motion to 14 dismiss was timely filed. 15 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 24 grant judicial notice sua sponte. Fed. R. Evid. 201(c)(1). “[A] court may take judicial notice of 25 records and reports of administrative bodies.” Mack v. South Bay Beer Distrib., Inc., 798 F.2d 26 1279, 1282 (9th Cir. 1986) (internal quotation marks and citation omitted). 27 Here, the Commissioner has attached copies of letters and records sent from the Social 28 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 6 The Commissioner moves to dismiss Plaintiff’s complaint for lack of subject matter 7 jurisdiction. Section 405(g) of the Social Security Act provides for limited judicial review of an 8 administrative decision by the Commissioner of Social Security: 9 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 11 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 13 level. Califano v. Sanders, 430 U.S. 99, 108 (1977) (“This provision clearly limits judicial review 14 to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’”). 15 “A final decision has two elements: (1) presentment of the claim to the Commissioner, and (2) 16 complete exhaustion of administrative remedies.” Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 17 1993). Discretionary decisions based on regulations promulgated by the SSA, such as the denial 18 of a claimant’s petition to reopen a prior determination or the denial of an untimely hearing 19 request, are generally not available for judicial review. See Dexter v. Colvin, 731 F.3d 977, 980 20 (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 6 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’ 10 of the claim is the Social Security Act.” Hooker v. United States Dept’t of Health and Human 11 Servs., 858 F.2d 525, 529, 528-30 (1988) (plaintiffs could not hold the United States liable under 12 the Federal Tort Claims Act, 28 U.S.C. § 1346(b), in action arising from the wrongful termination 13 of disability benefits). 14 The Court finds that Plaintiff did not obtain a final decision from the Commissioner 15 regarding her Title II and Title XVI claims. See Johnson, F.3d 918 at 921 (“A final decision has 16 two elements: (1) presentment of the claim to the Commissioner, and (2) complete exhaustion of 17 administrative remedies.”). Thus, to the extent that Plaintiff’s complaint challenges an 18 administrative decision by the Commissioner regarding a claim for benefits, the Court finds that 19 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 28 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 6 Income benefits, Plaintiff did not obtain a final decision from the Commissioner within the 7 meaning of Section 405(g) because Plaintiff has not yet requested a hearing before an ALJ or 8 otherwise sought review from the Appeals Council. (ECF No. 25-1, p. 2-3). Thus, Plaintiff has 9 failed to exhaust her administrative remedies regarding her Title XVI claim. 10 Moreover, Plaintiff fails to allege a colorable constitutional claim for violation of due 11 process in connection to her benefits claims that would waive her failure to exhaust. Plaintiff’s 12 complaint only provides “mere allegations” that the SSA reduced Plaintiff’s benefits without 13 providing Plaintiff an opportunity to be heard at a hearing or to lodge objections. While Plaintiff 14 alleges that she requested an “in-person hearing,” Plaintiff does not allege that this request was 15 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’”). 24 D. Plaintiff’s Other Claims 25 To the extent Plaintiff’s complaint asserts claims based in tort and violations of federal 26 law against the Commissioner, the Court finds that the Court lacks subject matter jurisdiction 27 because those claims arise under the Social Security Act. 28 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 6 section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.”); see also 7 Courtney v. Comm’r of Soc. Security, 2021 WL 1105162, at *7 (E.D. Cal. Mar. 23, 2021) 8 (“Congress has waived sovereign immunity over tort claims against the United States for personal 9 injury, death, or property damage. But § 405(h) ‘specifically deprives [this court] of subject 10 matter jurisdiction over claims arising under 28 U.S.C. § 1346(b) when they also arise under Title 11 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)). 13 Plaintiff’s fifth cause of action alleges that the SSA discriminated against Plaintiff by 14 reducing her benefits and depriving her of the right to enter the SSA office in violation of the 15 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. 25 V. SCREENING 26 Pursuant to the Court’s prior order, the Court will now screen Plaintiff’s complaint to the 27 extent that it asserts claims against the SSA and the United States. 28 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 6 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 8 action challenging an administrative decision by the Commissioner of Social Security because the 9 SSA and the United States are subject to sovereign immunity. See 20 C.F.R. § 422.210(d); see 10 also Henderson v. Colvin, No. 6:14-CV-1053-PA, 2015 WL 6598713, at *1 (D. Or. Oct. 29, 11 2015) (citing Matthews v. Eldridge, 424 U.S. 319, 327 (1976)) (“Sovereign immunity protects the 12 United States and its agencies from suit unless there is a waiver [and] [t]he United States has 13 waived sovereign immunity as to the Commissioner's final decisions denying Social Security 14 benefits, allowing private parties to bring actions for judicial review under 42 U.S.C. § 405(g) and 15 405(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 24 any other officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to 25 recover on any claim arising under this subchapter.”). Therefore, the Court recommends that 26 Plaintiff’s claims regarding violations of state tort law or federal law against the SSA and the 27 United States be dismissed. 28 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. 6 The Court has also screened Plaintiff’s complaint and recommends that Plaintiff’s claims 7 against the SSA and the United States be dismissed for lack of subject matter jurisdiction. 8 Further, the Court recommends that Plaintiff’s claims against the SSA and the United States be 9 dismissed with prejudice and without leave to amend. 10 Dismissal of a pro se complaint without leave to amend is appropriate where any 11 opportunity to amend the complaint would be futile. Lopez v. Smith, 203 F.3d 1122, 1127 (9th 12 Cir. 2000) (“a district court should grant leave to amend even if no request to amend the pleading 13 was made, unless it determines that the pleading could not possibly be cured by the allegation of 14 other facts.”). Here, no additional facts could cure the deficiencies in Plaintiff’s complaint. As 15 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 24 tort and violations of federal law against the Commissioner, the Court recommends that 25 those claims be dismissed for lack of subject matter jurisdiction with prejudice and 26 without leave to amend. 27 2. That Plaintiff’s claims against the SSA and the United States related to an administrative 28 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)). 13 14 | ITIS □□ ORDERED. | pated: _Mareh 5, 2023 heey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 15