(SS) Hafer v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DECHERI HAFER, ) Case No.: 1:22-cv-0972 JLT EPG ) 12 Plaintiff, ) ORDER ADOPTING IN PART THE FINDINGS ) AND RECOMMENDATIONS, GRANTING THE 13 v. ) COMMISSIONER OF SOCIAL SECURITY’S ) MOTION TO DISMISS, AND DIRECTING THE 14 COMMISSIONER OF SOCIAL SECURITY, ) CLERK OF COURT TO CLOSE THIS CASE et al., ) 15 ) (Docs. 25, 30) ) 16 Defendants. ) ) 17 18 DeCheri Hafer proceeds pro se and in forma pauperis in this action against the Social Security 19 Administration, Commissioner of Social Security, and the United States. This matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 The Commissioner of Social Security filed a motion to dismiss Plaintiff’s claims pursuant to 22 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that Plaintiff’s complaint fails 23 to assert subject matter jurisdiction and fails to state a claim. (Doc. 25.) The magistrate judge found 24 Plaintiff failed to fully exhaust her administrative remedies related to her claims for benefits under 25 Title II and Title XVI of the Social Security Act. (Id. at 14.) The magistrate judge recommended the 26 Commissioner’s motion be granted and Plaintiff’s claims against the Commissioner be dismissed for 27 lack of subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies. (Id.) 28 Furthermore, the magistrate judge recommended that Plaintiff’s claims against the Commissioner be 1 dismissed without prejudice as to Plaintiff fully exhausting her administrative remedies with regards to 2 her Title II and Title XVI disability benefits. (Id.) To the extent Plaintiff asserts tort and violations of 3 federal law against the Commissioner, the magistrate judge also recommended such claims be 4 dismissed with prejudice, for lack of subject matter jurisdiction, and without leave to amend. (Id.) 5 The magistrate judge also screened the remainder of Plaintiff’s claims against the Social 6 Security Administration and the United States and found that Plaintiff’s complaint failed to state a 7 cognizable claim against the Social Security Administration and the United States. (Doc. 30 at 2.) 8 Further, the magistrate judge recommended that Plaintiff’s claims against the Social Security 9 Administration and the United States be dismissed with prejudice and without leave to amend due to 10 lack of subject matter jurisdiction. (Id. at 14.) 11 The Findings and Recommendations were served upon Plaintiff at the address on record. It 12 notified him that any objections were to be filed within 14 days. (Doc. 25 at 15.) However, the 13 Findings and Recommendations—like all other mail from the Court since December 27, 2022—was 14 returned as undeliverable.1 No objections have been filed. 15 Pursuant to 28 U.S.C. § 636 (b)(1)(C), this Court conducted a de novo review of the case. 16 Having carefully reviewed the entire matter, the Court concludes the Findings and Recommendations 17 are supported by the record and by proper analysis concerning the Plaintiff’s claims and the lack of 18 subject matter jurisdiction. However, where the Court lacks subject matter jurisdiction, dismissal shall 19 be made without prejudice. See Dichter-Mad Family Partners, LLP v. United States, 709 F.3d 749, 791 20 (9th Cir. 2013) (“dismissal for lack of subject matter jurisdiction is ordinarily without prejudice”); 21 Hampton v. Pac. Inv. Mgmt. Co., 869 F.3d 844, 846 (9th Cir. 2017) (“[d]ismissals for lack of subject- 22 matter jurisdiction … must be without prejudice, because a lack of jurisdiction deprives the dismissing 23 court of any power to adjudicate the merits of the case”). Accordingly, the claims against the Social 24 25 1 Pursuant to Local Rule 183(b), all parties appearing in propria persona shall keep the Court apprised of their current address. When, here, mail is returned to the Court by the U.S. Postal Service and the plaintiff fails to notify the Court of an 26 address change within 63 days of the return, “the Court may dismiss the action without prejudice for failure to prosecute.” LR 183(b). Thus, the Court finds dismissal without prejudice is also appropriate due to Plaintiff’s failure to comply with 27 the Local Rules. See , Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for failure to comply with local rule); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro 28 se plaintiffs to keep court apprised of address). 1 || Security Administration and the United States will be dismissed without prejudice for lack of subject 2 || matter jurisdiction, rather than the recommended dismissal with prejudice. See Dichter-Mad Family 3 || Partners, 709 F.3d at 791; Hampton, 869 F.3d at 846. Based upon the foregoing, the Court ORDERS 4 1. The Findings and Recommendations dated March 6, 2023 (Doc. 30) are ADOPTED 5 IN PART. 6 2. The Commissioner of Social Security’s motion to dismiss (Doc. 25) is GRANTED as 7 follows: 8 a. Plaintiff's claims against the Commissioner related to Plaintiff's Title II and 9 Title XVI disability benefits ace DISMISSED WITHOUT PREJUDICE as t 10 Plaintiff fully exhausting her administrative remedies. 11 b. To the extent Plaintiff's asserts claims based in tort and violations of federal la 12 against the Commissioner, these claims are DISMISSED WITHOUT 13 PREJUDICE due to lack of subject matter jurisdiction. 14 3. Plaintiffs claims against the Social Security Administration and the United States are 15 DISMISSED WITHOUT PREJUDICE due to lack of subject matter jurisdiction. 16 4. The Clerk of Court is directed to close this action. 17 18 ||IT IS SO ORDERED. 19 | Dated: _ April 6, 2023 ( LAW ph L. wan 20 TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28