Honig v. Social Security Administration

Filing 12

ORDER that Plaintiff's 8 Amended Complaint is dismissed without prejudice. Plaintiff shall have until September 12, 2014 to file a second amended complaint. The Clerk of Court shall terminate this action without further order of the Court if Plaintiff fails to comply. Signed by Judge David G Campbell on 8/26/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brett Honig,

No. CV-14-01443-PHX-DGC
Plaintiff,

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v.

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Social Security Administration,

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ORDER

Defendant.

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On August 19, 2014 Plaintiff filed his first amended complaint against the “Social

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Security Administration.” Doc. 8. The Court will dismiss the complaint for failure to

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state a claim.

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I.

Legal Standard.

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In IFP proceedings, a district court “shall dismiss the case at any time if the court

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determines that . . . the action . . . fails to state a claim on which relief can be granted[.]”

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28 U.S.C. § 1915(e)(2). Although much of § 1915 concerns prisoner litigation, § 1915(e)

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applies to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000)

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(en banc).

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sponte . . . a complaint that fails to state a claim[.]” Id. at 1130. “It is also clear that

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section 1915(e) not only permits but requires a district court to dismiss an in forma

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pauperis complaint that fails to state a claim.” Id. at 1127. A district court dismissing

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under this section “should grant leave to amend even if no request to amend the pleading

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was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Id. at 1127-29 (citations omitted).

“Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[ ] sua

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Rule 8 of the Federal Rules of Civil Procedure provides that “[a] pleading that

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states a claim for relief must contain . . . a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This short and plain statement

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“need not contain detailed factual allegations; rather, it must plead ‘enough facts to state

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a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534

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F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007)). Legal conclusions couched as factual allegations are not given a presumption of

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truthfulness and “conclusory allegations of law and unwarranted inferences are not

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sufficient.”

Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Dismissal is

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appropriate where the complaint lacks a cognizable legal theory, lacks sufficient facts

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alleged under a cognizable legal theory, or contains allegations disclosing some absolute

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defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

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(9th Cir. 1988).

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II.

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Plaintiff’s Amended Complaint.
Plaintiff names as Defendant the Social Security Administration.

Plaintiff’s

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amended complaint appears to be based on a determination of overpayment that occurred

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while he was incarcerated in a mental health facility. Doc. 8 at 2. Plaintiff alleges that

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when he was released “Social Security was asking for all this money to be paid back[.]”

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Id. He believes “this is not fair” because he “didn’t know the money was in the bank[.]”

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Id. Plaintiff also appears to allege that his insurance has been stopped and that he also

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has “an overpayment” with Medicare. Id.

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Plaintiff attaches to his complaint a series of letters, written either to the “Director

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of Social Security,” the “Social Security Office,” or President Obama, complaining that

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the “Director wants an overpayment back” and Plaintiff does not believe this is fair

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because he was incarcerated. Id. at 8-18.

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Plaintiff’s amended complaint does not satisfy federal pleading requirements.

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Although Plaintiff appears to have clarified that he intends to sue the Social Security

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Administration, the amended complaint fails to state the legal nature of Plaintiff’s claim,

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or the basis for this Court’s jurisdiction. The amended complaint states that Plaintiff does

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not believe it is fair that Defendant made an overpayment determination while he was

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incarcerated, but this belief, without more, is not sufficient to state a claim. Plaintiff does

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not explain what law, if any, was violated by Defendant’s alleged actions, nor does he

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include any information on administrative remedies he has pursued. The Court will

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therefore dismiss Plaintiff’s amended complaint for failure to state a claim.

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III.

Leave to Amend and Plaintiff’s Obligations.

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In this circuit, “[a] pro se litigant must be given leave to amend his or her

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complaint unless it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th

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Cir. 1988). The Court will dismiss the amended complaint without prejudice and allow

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Plaintiff to file a second amended complaint, consistent with this order, that properly

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states a claim for relief. Plaintiff shall have until September 12, 2014 to file a second

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amended complaint.

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Plaintiff is again advised that he must become familiar with, and follow, the

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Federal Rules of Civil Procedure and the Rules of the United States District Court for the

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District of Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s

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office. For purposes of his second amended complaint, Plaintiff is directed to Rule 8 of

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the Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint “must contain

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(1) a short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a short

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and plain statement of the claim showing that the pleader is entitled to relief, and (3) a

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demand for the relief sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be

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set forth in separate and discrete paragraphs. Rule 8(d) provides that each such paragraph

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“must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

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The “short and plain statement of the claim” required by Rule 8(a)(2) must not

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only designate a cause of action, but must also include enough factual allegations to

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render the claim plausible. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). If Plaintiff

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chooses to file an amended complaint asserting constitutional violations by federal or

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state officials, his pleading should include a statement of the constitutional rights Plaintiff

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believes to have been violated, how each right was violated, how each defendant

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contributed to the violation, and what injury was caused by each alleged constitutional

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violation. Such factual allegations must provide enough information to “allow[ ] the

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court to draw the reasonable inference that the defendant[s are] liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678.

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If Plaintiff fails to prosecute this action or to comply with the rules or any Court

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order, the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b).

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(holding that the district court did not abuse its discretion in dismissing a pro se

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plaintiff’s complaint for failing to comply with a court order).

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IT IS ORDERED:

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1.

Plaintiff’s amended complaint (Doc. 8) is dismissed without prejudice.

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2.

Plaintiff shall have until September 12, 2014 to file a second amended
complaint.

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3.

The Clerk of Court shall terminate this action without further order of the

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Court if Plaintiff fails to file a second amended complaint on or before

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September 12, 2014.

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Dated this 26th day of August, 2014.

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