(SS)Gallegos v. Commissioner of Social Security et al

Filing 6

ORDER DIRECTING Clerk of the Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action with Prejudice re: 1 Social Security Complaint, signed by Magistrate Judge Christopher D. Baker on November 22, 2024. Referred to Judge Sherriff; Objections to F&R due within 21 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY DE CARLO GALLEGOS,

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Plaintiff,

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Case No. 1:24-cv-01310-CDB (SS)
FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION WITH PREJUDICE

v.

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COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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21-day Deadline
Clerk of the Court to Assign District Judge

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Plaintiff Benny De Carlo Gallegos (“Plaintiff”), proceeding pro se, seeks judicial review

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of this Court’s earlier affirmance of a final decision of the Commissioner of Social Security

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(“Commissioner” or “Defendant”) denying his application for disability insurance benefits and

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supplemental income benefits under the Social Security Act. In his complaint, Plaintiff names as

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Defendants the Commissioner, the administrative law judge that presided over Plaintiff’s

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administrative claim (Laura Bernasconi), and U.S. Magistrate Judge Stanley A. Boone, who

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presided over Plaintiff’s earlier action in this Court seeking review of the Commissioner’s denial

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of his application for benefits.1

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The undersigned has considered the Code of Conduct for United States Judges and concludes
that recusal is unwarranted. See Canon 3C(1) (Mar. 2019).
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Background

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On March 28, 2024, the Judge Boone issued an order denying Plaintiff’s motion for

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summary judgment in an earlier-filed action in which Plaintiff sought judicial review of the

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Commissioner’s denial of his application for benefits. Gallegos v. Comm’r of Soc. Sec. at al., No.

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1:23-cv-00090-SAB (“Gallegos I”), Doc.19.2 That same day, Judge Boone ordered that judgment

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be entered in favor of the Commissioner and against Plaintiff and the case be closed. (Gallegos I,

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Docs. 19-20). Plaintiff did not file a notice of appeal or motion for reconsideration of the Court’s

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order.

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Approximately five months later, on September 10, 2024, Plaintiff commenced a new

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action against the Commissioner, ALJ Bernasconi, and Judge Boone, and filed a motion to

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proceed in forma pauperis. Gallegos v. Comm’r of Soc. Sec. et al., No. 1:24-cv-01072-CDB

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(“Gallegos II”), Docs. 1, 2. Upon reviewing the allegations of Plaintiff’s complaint on October 3,

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2024, the undersigned construed the subsequent action as an attempt by Plaintiff to appeal or seek

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reconsideration of the Court’s ruling in Plaintiff’s earlier action (Gallegos I). Accordingly, the

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undersigned entered an order construing Plaintiff’s action as a motion for reconsideration of

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Judge Boone’s decision in Gallegos I, directing the Clerk of the Court to administratively close

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Gallegos II and to file the order and the complaint on the docket in Gallegos I. See (Gallegos I,

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Doc. 21).

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On October 7, 2024, Judge Boone entered an “Order Disregarding Construed Motion for

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Reconsideration” in which he held, “[t]his Court does not construe Plaintiff’s filing [of Gallegos

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II] as a motion for reconsideration.” (Gallegos I, Doc. 23). Judge Boone further noted, “[t]o the

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extent Plaintiff is attempting to file an untimely notice of appeal of the March 28, 2024 order by

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way of a civil complaint in this Court, Plaintiff should have been advised that his requested relief

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was improper.” Id. at 4 (citing Local Rule 146 and Fed. R. App. P. 3).

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The Present Action

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On October 25, 2024, Plaintiff filed the instant action and a motion to proceed in forma

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A court may take judicial notice of court records in another case. United States v.
Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004).
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pauperis. (Docs. 1, 2). As with his filings in Gallegos II, Plaintiff asserts the Commissioner,

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Administrative Law Judge Bernasconi, and Judge Boone “overlooked [his] substantial evidence”

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and that he seeks to appeal the Court’s decision in the underlying case. (Doc. 1 at 5-6). Plaintiff

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states he “strongly disagree[s] with the decision made on [Gallegos I] due to the neglect I have

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been receiving in this case.” Id. at 7. Plaintiff states that “the opposing party” in Gallegos I

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(presumably, the Commissioner) made “various misrepresentations” in Gallegos I and that

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Plaintiff commenced the instant action to “be given an opportunity to appeal” and that he “will be

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submitting documents as evidence.” Id.

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Governing Legal Standard

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Because Plaintiff is proceeding without counsel in this action and seeks to be granted in

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forma pauperis status, this Court is required pursuant to 28 U.S.C. § 1915(e)(2)(B) to screen

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Plaintiff’s complaint and dismiss any case that is “frivolous or malicious,” “fails to state a claim

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on which relief may be granted” or seeks monetary relief against an immune defendant. See

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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only

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permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.”).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint may be dismissed as a matter

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of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2)

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insufficient facts under a cognizable legal theory. See Balisteri v. Pacifica Police Dep’t, 901 F.2d

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696, 699 (9th Cir. 1990).

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Pleadings by self-represented litigants are to be liberally construed. See Haines v. Kerner,

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404 U.S. 519, 520-21 (1972). However, “the liberal pleading standard . . . applies only to a

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plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n .9

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(1989).

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Discussion

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Based on Plaintiff’s allegations – including that he expressly seeks to “appeal” from Judge

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Boone’s dismissal of Plaintiff’s action seeking review of the Commissioner’s denial of his

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application for benefits and that Plaintiffs seeks the same relief by his present appeal (award of

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social security benefits) – the undersigned construes the instant action as an attempt by Plaintiff to

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appeal the Court’s decision in Gallegos I. Even liberally construing the complaint, such an action

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now is untimely under Rule 4 of the Federal Rules of Appellate Procedure. Specifically,

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judgement was entered in Gallegos I on March 28, 2024, and Plaintiff did not file commence

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Gallegos II until September 10, 2024 – more than five months later. See Fed. R. App. P. 4(1)(B)

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(providing that a notice of appeal in action to which the United States is a party must be filed

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within 60 days after entry of the judgment/order to be appealed). It follows that this action,

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likewise, is time-barred.

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As discussed above, the Court must dismiss a case if it is frivolous. 28 U.S.C. §

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1915(e)(2)(B). A claim is legally frivolous and must be dismissed when it lacks an arguable basis

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either in law or fact. Neitzke, 490 U.S. at 325, 327. The Court lacks subject matter jurisdiction

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over frivolous cases. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998);

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see also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018)

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(noting that the “wholly insubstantial and frivolous” standard for dismissing claims operates

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under Rule 12(b)(1) for lack of federal question jurisdiction).

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Because Plaintiff’s action lacks any arguable basis in law (because it is time-barred), the

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undersigned will recommend that Plaintiff’s complaint be dismissed with prejudice and that his

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pending application to proceed in forma pauperis be denied as moot.

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Conclusion and Recommendation

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Based on the foregoing, the undersigned HEREBY RECOMMENDS that

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1. Plaintiff’s complaint (Doc. 1) be DISMISSED with prejudice; and

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2. Plaintiff’s application to proceed in forma pauperis (Doc. 2) be DENIED as moot.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days
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after being served with a copy of these Findings and Recommendations, a party may file written

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objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

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Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without

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leave of Court and good cause shown. The Court will not consider exhibits attached to the

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Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the

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exhibit in the record by its CM/ECF document and page number, when possible, or otherwise

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reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may

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be disregarded by the District Judge when reviewing these Findings and Recommendations

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under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time

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may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839

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(9th Cir. 2014).

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IT IS SO ORDERED.

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Dated:

November 22, 2024

___________________

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UNITED STATES MAGISTRATE JUDGE

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