(SS) Hafer v. United States ( 2022 )

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-00972-JLT-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 13 v. REQUEST FOR ENTRY OF DEFAULT BE DENIED 14 COMMISSIONER OF SOCIAL 15 SECURITY, et al., (ECF Nos. 20 & 22). 16 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 17 18 19 Plaintiff DeCheri Hafer (“Plaintiff”) is proceeding pro se and in forma pauperis in this 20 action against the Social Security Administration, Commissioner of Social Security, and United 21 States. (See ECF No. 1). On November 28, 2022, Plaintiff filed a request for entry of default 22 against the Social Security Administration and the United States. (ECF No. 20). On November 23 30, 2022, Plaintiff file an identical request.1 (ECF No. 22). The matter was referred to the 24 undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(19). For the following 25 reasons, the Court recommends that Plaintiff’s requests be denied. 26 // 27 1 As the November 30, 2022 request (ECF No. 22) is identical to the request filed on November 28, 2022 (ECF No. 28 20), the Court will hereafter cite to the first request. 1 I. BACKGROUND 2 Plaintiff initiated this action by filing a complaint on July 22, 2022. (ECF No. 1). 3 Plaintiff’s complaint states various claims against the Commissioner of Social Security, the Social 4 Security Administration, and the United States. Plaintiff’s complaint partly seeks review of an administration decision of the 5 Commissioner of Social Security denying Plaintiff’s claim for disability benefits under the Social 6 Security Act. (See ECF No. 1). For that reason, the Court issued new social security case 7 documents on August 19, 2022. (ECF No. 11). On that same day, the Court issued summons to 8 the Commissioner of Social Security. (ECF No. 10). As in other cases where a Plaintiff 9 challenges an administrative decision regarding disability benefits, the summons and complaint 10 were served electronically on the Commissioner of Social Security via the Court’s E-service 11 program. (ECF No. 12). 12 On November 8, 2022, the Commissioner of Social Security filed an ex parte request to 13 extend the deadline to respond to Plaintiff’s complaint. (ECF No. 14). The Court granted the 14 request and ordered that the Commissioner file a response by December 19, 2022. (ECF No. 15). 15 Summons have not issued as to the Social Security Administration or the United States. 16 II. LEGAL STANDARDS 17 Federal Rule of Civil Procedure 55 provides, “[w]hen a party against whom a judgment 18 for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 19 by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Before a 20 default will be entered, the clerk must be satisfied from the request and accompanying 21 documentation that: 1) the defendant has been served with the summons or has agreed to waive 22 serve; 2) the time allowed by law for responding has expired; and 3) the defendant has failed to 23 file a pleading or motion permitted by law. U.S. ex rel. Felix Haro Const., Inc. v. St. Paul Fire and Marine Ins. Co., 2009 WL 1770156, at *3 (E.D. Cal. June 23, 2009) (citing Hawaii 24 Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986)); see also Chambers v. 25 Knight, 2019 WL 1923936, at *2 (S.D. Cal. Apr. 30, 2019) (“A default may not enter against a 26 defendant unless the plaintiff has properly served the defendant.”). 27 28 1 Federal Rule of Civil Procedure 4 governs service of summons. Rule 4 provides that 2 “[t]he plaintiff is responsible for having the summons and complaint served within the time 3 allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” 4 Fed. R. Civ. P. 4(b). However, in cases where the plaintiff proceeds in forma pauperis, “the officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.” 28 5 U.S.C. § 1915(d). Thus, Rule 4 provides that “[t]he court must order [that service be made by a 6 United States marshal] if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 7 § 1915[.]” Fed. R. Civ. P. 4(c)(3). 8 In cases where the plaintiff proceeds in forma pauperis, the Court is required to screen the 9 complaint pursuant to §1915 (e)(2)(B). 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (A court “shall dismiss 10 the case at any time if the court determinates that. . .the action or appeal is frivolous or malicious; 11 fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant 12 who is immune from such relief.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 13 provisions of 28 U.S.C. §1915(e)(2)(B) are not limited to prisoners.”). If a court finds that the 14 complaint may proceed, the court will direct the U.S. Marshals to serve the summons and 15 complaint on the defendants named in the complaint as required by Rule 4(c)(3). 16 III. DISCUSSION 17 Because Plaintiff proceeds in forma pauperis, the Court is required to issue and effectuate 18 all process in this case. However, the Court is also required to screen Plaintiff’s complaint 19 pursuant to § 1915(e)(2)(B). The Court has not yet screened Plaintiff’s complaint to the extent 20 that Plaintiff seeks relief other than review of an administrative decision by the Commissioner of 21 Social Security regarding disability benefits. As such, the Court has not yet issued summons or 22 directed service to the Social Security Administration or the United States. Accordingly, the 23 Court finds that entry of default against the Social Security Administration or the United States is premature, and the Court will recommend that Plaintiff’s request for entry of default be denied. 24 // 25 // 26 // 27 // 28 1 IV. CONCLUSION AND RECOMMENDATION 2 In light of the foregoing, IT IS HEREBY RECOMMENDED that Plaintiffs requests for 3 || entry of default against the Social Security Administration and the United States (ECF Nos. 20 & 4 || 22) be denied. 5 These findings and recommendations will be submitted to the United States district judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 7 (14) days after being served with these findings and recommendations, any party may file written g objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are 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, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 (9th Cir. 1991)). 13 14 | ITISSO ORDERED. ° Dated: _ December 1, 2022 [sl ey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28