Hoeft v. Ballon

Filing 41

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/21/2017 GRANTING 34 Motion to Dismiss; DISMISSING the 16 First Amended Complaint for failure to state a claim; GRANTING the plaintiff thirty days to file an amended complaint; CAUTIONING the plaintiff that a failure to file an amended complaint in accordance with this order will result in a recommendations that this action be dismissed. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONICA HOEFT,

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Plaintiff,

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No. 2:16-cv-02615 CKD (PS)

v.

ORDER

AL BALLON,

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Defendant.

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On July 19, 2017, the court held a hearing on defendant Ballon’s motion to dismiss this

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action for failure to state a claim. (ECF No. 34.) Plaintiff appeared pro se, and Philip

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Scarborough appeared for Gregory Broderick on behalf of defendant. Plaintiff filed an opposition

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to the motion, and defendant filed a reply. (ECF Nos. 37 & 38.) After arguments, the court took

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the matter under submission.

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I. Allegations
This action proceeds on the amended complaint filed February 6, 2017.1 (ECF No. 16

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(“FAC”)). In the FAC, plaintiff alleges that defendant Ballon is the manager of the Social

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Security Administration branch in Stockton, entrusted in his official capacity with “the

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This case was originally designated a social security action seeking benefits. After plaintiff
clarified the issue, it was changed to a civil rights action, and the Commissioner of Social
Security was dismissed as a defendant. (ECF Nos. 11, 12 & 17.)
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distribution of benefits and services to its payees within its local jurisdiction.” (FAC at 1.)

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Ballon is the defendant in this action “in his private capacity.” (Id.)

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In 2012, plaintiff filed for divorce against her husband of 16 years. The San Joaquin

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County Superior Court issued a support order of $800 per month, which was mailed to the

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Stockton field office of the Social Security Administration (“SSA”).2 There was no response.

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Later that year, the amount was reduced to $437 per month. In 2013, plaintiff sent a letter to the

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SSA enclosing a copy of the order. A Mr. Monty at the SSA called to inform her that the order

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would not be honored because it was not directed to the SSA, but to plaintiff’s ex-husband.

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Plaintiff hired a process server who again served the support order on the SSA, but it did not

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respond. (FAC at 2-3.) In 2014, plaintiff sent a letter to Constituent Services in the Offices of

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Senator Barbara Boxer, asking for help in this matter. On July 18, 2014, Ballon responded to

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Boxer’s department of Constituent Services and “denied being properly served” and “denied that

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there ever was a valid Earnings Assignment order.” (FAC at 4.) Boxer’s office forwarded

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Ballon’s letter to plaintiff. Later that year, plaintiff received another form letter from the SSA,

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not signed by Ballon.

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In June 2015, plaintiff learned that her ex-husband had been located in Reno, Nevada. In

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November 2015, a SSA branch in Richmond, California informed her that the Earnings

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Assignment Order would be honored and amounts withheld accordingly. (FAC at 4.) Plaintiff

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asserts that the Stockton SSA should have also honored the order. She claims defendant “is

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personally liable” under Bivens3 for denying her property right to court-ordered support without

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due process of law and for “arbitrarily refusing to honor the valid Earnings Assignment Order” of

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the San Joaquin County court. (Id. at 5.)

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Plaintiff stated at the hearing that the support order concerned disability payments to her exhusband.
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Under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
individual federal employees may be subject to suit for violating a plaintiff’s constitutional rights.
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II. Rule 12(b)(6)

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something

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more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

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right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.

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235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id.

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the party opposing the motion, and resolve all

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doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S.

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869 (1969). The court will “‘presume that general allegations embrace those specific facts that

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are necessary to support the claim.’” National Organization for Women, Inc. v. Scheidler, 510

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U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

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Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972).

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III. Discussion

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Defendant argues that plaintiff has not stated a claim against defendant because she has

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not alleged that he personally violated her constitutional rights; all he did was write a letter to

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Constituent Services in Senator Boxer’s office addressing plaintiff’s inquiry about the support

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order.4 “There is no allegation that Mr. Ballon even rejected plaintiff’s garnishment order, much

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Defendant assumes for the sake of argument that Ballon personally wrote the letter, though all
official correspondence from the Stockton office is stamped with his name and someone else
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less that he did so in an unconstitutional manner.” (ECF No. 34-1 at 1.) Defendant further argues

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that he is entitled to qualified immunity because plaintiff has not alleged facts showing that he

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personally violated her rights under “clearly established law.” (Id.)

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Bivens is the federal analog to suits brought against state officials under 42 U.S.C. § 1983.

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Ashcroft v. Iqbal, 556 U.S. 662, 676-76 (2009). “Because vicarious liability is inapplicable to

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Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through

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the official’s own individual actions, has violated the Constitution.” Id. at 676. “Only federal

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officials who actually participate in alleged violations are subject to a Bivens-type suit.” O’Neal

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v. Eu, 866 F.2d 314 (9th Cir. 1989) (collecting cases). “A plaintiff must plead more than merely

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a negligent act by a federal official in order to state a colorable claim under Bivens.” Id. Under

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this standard, plaintiff has failed to state a Bivens claim against defendant, and dismissal of this

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claim is warranted.

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However, under California law, when a copy of a notice of levy is served on a third party

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holding the property sought to be levied upon, that “shall suffice as the notice of levy to that

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person.” Cal. Code Civ. Proc. § 699.545. Under Cal. Code of Civil Procedure § 706.030(a), a

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“withholding order for support” may be issued to collect “delinquent amounts payable under a

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judgment for the support of a child, or spouse or former spouse, of the judgment debtor.” A court

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may also issue an “earnings assignment order for support” under Cal. Family Code § 5200, et seq.

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Third parties are required to comply with the terms of such orders. Thus it is possible plaintiff

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may be able to assert a state law claim against defendant in his official capacity, insofar as the

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Stockton field office of the SSA allegedly failed to comply with a court order. Accordingly,

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plaintiff will be granted an opportunity to amend the complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional

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grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

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Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation

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of plaintiff’s rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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likely wrote it. (ECF No. 24-1 at 3, n.4.)
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendant Ballon’s motion to dismiss (ECF No. 34) is granted;

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2. Plaintiff’s First Amended Complaint (ECF No. 16) is dismissed for failure to state a

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claim; and
3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “Second Amended Complaint”; failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.

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Dated: July 21, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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