Beck v. Thompson, et al.

Filing 4

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 7/23/2012. Amended Complaint due by 8/27/2012.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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REVEREND BECK,
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) 1:12-cv-0721-BAM
)
)
) ORDER DISMISSING COMPLAINT WITH
Plaintiff,
) LEAVE TO AMEND
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v.
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CORWIN THOMPSON, MARTIN R
)
GARZA, and GENERAL COUNSEL
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SOCIAL SECURITY ADMINISTRATION )
Defendants.
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)

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I.

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MOTION TO PROCEED IN FORMA PAUPERIS

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By application filed June 8, 2012, Plaintiff has requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. (Doc. 3). Plaintiff has submitted a declaration that makes the

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showing required by § 1915 (a). Accordingly, the request to proceed in forma pauperis IS

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GRANTED. 28 U.S.C. § 1915 (a).

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II.

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SCREENING THE COMPLAINT

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A.

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On May 2, 2012 Plaintiff Reverend Beck (“Plaintiff”), currently incarcerated at Kern Valley

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State Prison, filed this pro se action against Corwin Thompson, Martin R Garza, and General

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Counsel Social Security Administration. Plaintiff’s complaint seeks damages and recovery of

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disability and supplemental security income payments he claims the Social Security Administration

Introduction

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illegally terminated or withheld. Upon a review of the complaint, this Court recommends that the

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action be dismissed with leave to amend.

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B.

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint

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for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court

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determines that the action is legally “frivolous or malicious,” fails to state a claim upon which relief

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may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend

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may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

Screening Standard

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Fed. R. Civ. P. 8(a) provides:

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A pleading that states a claim for relief must contain: (1) a short and plain statement of the
grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support, (2) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.

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A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and

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state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d

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646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts

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which the defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not

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outline all elements of a claim, it must be possible to infer from the allegations that all elements exist

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and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell

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Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Services, Inc., 135 F.3d

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389, 405-06 (6th Cir. 1998).

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In reviewing a complaint under this standard, the Court must accept as true the well plead

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allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S.

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738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff,

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Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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C.

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In his complaint, Plaintiff alleges that Defendants unlawfully seized his social security

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disability benefits and social security income when he became incarcerated in 1993. He seeks money

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damages against Defendants for alleged constitutional violations in connection with their handling

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of his social security income and disability benefits.

Plaintiff’s Allegations

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D.

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Plaintiff’s claims are not cognizable for two reasons. First, a dissatisfied Social Security

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claimant may not seek damages from officials for conduct that leads to the wrongful denial of

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benefits. Schweiker v. Chilicky, 487 U.S. 412, 420-29 (1988) (improper denial of Social Security

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benefits cannot give rise to cause of action for money damages); see also Hawes v. Richardson, 2012

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U.S. Dist. LEXIS 91543 at *3 (N.D. Cal. June 28, 2012).

Failure to State a Claim

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Second, Plaintiff’s complaint fails to state a claim under the Social Security Act, which

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provides that “no monthly benefits shall be paid under this section…to any individual for any month

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during which such individual is confined in a jail, prison, or other penal institution or correctional

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facility….” 42 U.S.C. § 402(x)(1)(A)(I). The Ninth Circuit has ruled that suspension of benefits

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during incarceration is mandatory pursuant to 42 U.S.C. § 402(x). Butler v. Apfel, 144 F.3d 622, 627

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(9th Cir. 1998). After 12 months of continuous suspension, benefits are terminated and are not

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automatically reinstated upon release from prison. See Stubbs-Danielson v. Astrue, 539 F.3d 1169

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(9th Cir. 2008); 20 C.F.R. § 416.1335.

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Here, Plaintiff alleges that he was convicted of a crime and incarcerated for over a year.

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Thus, 42 U.S.C § 402(x) applies, and the Commissioner of Social Security is entitled to suspend his

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social security and disability benefits during his incarceration. See 42 U.S.C. § 402(x). However,

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this Court acknowledges that pro se plaintiffs proceeding in forma pauperis must be given an

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opportunity to amend their complaint unless it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.” Franklin v. Murphy, 745 F.2d at 1228, n.9. 42

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U.S.C. § 402(x)(1)) states that Social Security disability benefits shall not be paid to any imprisoned

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felon (federal or state) unless the individual is “actively and satisfactorily participating in a

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rehabilitation program which has been specifically approved for such individual by a court of law
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and the Secretary of Health and Human Services [the department where Social Security

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Administration is housed].” It is not clear what kind of claim Plaintiff is asserting. Plaintiff does not

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suggest that he has participated in a rehabilitation program, but he should be given opportunity to

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amend to state a claim. Therefore, in light of the allegations presented, and in deference to Plaintiff’s

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pro se status, Plaintiff’s cause of action against all Defendants is DISMISSED WITH LEAVE TO

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AMEND. 28 U.S.C. § 1915A(b).

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CONCLUSION

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For the reasons given above, Plaintiff’s complaint is DISMISSED WITH LEAVE TO

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AMEND. Plaintiff’s first amended complaint is due within thirty (30) days of the date of

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service of this order. If Plaintiff fails to file a first amended complaint, the Court will

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recommend that this action be dismissed for failure to follow a court order.

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Plaintiff is cautioned that an amended complaint supercedes the original complaint, and must

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be “complete in itself without reference to the prior or superceded pleading.” See Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

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1987); Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567, citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981); accord Forsyth, 114 F.3d at

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1474.).

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IT IS SO ORDERED.
Dated:
10c20k

July 23, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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