Hoeft v. Ballon
ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/3/17 ORDERING that Defendant Ballon's motion to dismiss (ECF No. 43 ) is GRANTED; and this action is DISMISSED with prejudice. CASE CLOSED(Becknal, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-02615 CKD (PS)
Following a hearing on July 19, 2017, plaintiff’s complaint was dismissed with leave to
amend. (ECF No. 41.) Before the court is defendant’s motion to dismiss plaintiff’s Second
Amended Complaint (“SAC”). (ECF No. 43.) Plaintiff has filed an opposition, and defendant
has replied. (ECF Nos. 45 & 46.) On September 13, 2017, the motion was submitted without
As in her initial complaint, plaintiff claims that defendant Ballon, a Social Security
Administration manager in Stockton, California, personally violated her federal due process rights
The parties have consented to magistrate judge jurisdiction. ECF Nos. 6 and 14.
under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).2
Plaintiff alleges that Ballon responded to a 2014 letter from Senator Boxer’s Department of
Constituent Services concerning plaintiff’s inquiry into unpaid support. Defendant allegedly
“denied having been properly served . . . and denied that there was ever a valid Earnings
Assignment Order[.]” (SAC, ¶ 25.) In its July 26, 2017 order dismissing plaintiff’s initial
complaint with leave to amend, the court explained that plaintiff failed to state a Bivens claim
against defendant; the SAC does not cure the pleading defects discussed in that order.
Plaintiff asserts a cause of action under 42 U.S.C. § 659, which governs federal
garnishment for purposes of enforcing child support and alimony allegations. Any alleged
violation of these provisions does not give rise to a Bivens claim, however, as plaintiff has not
alleged intentional conduct amounting to a constitutional tort. Nor do defendant’s alleged
violations of state law give rise to a Bivens claim. Although the court may exercise supplemental
jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under
federal law. See 28 U.S.C. § 1367.
Because plaintiff has failed to state a cognizable claim after two attempts, and it appears
that further leave to amend would be futile, the undersigned will grant defendant’s motion and
dismiss this action with prejudice.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendant Ballon’s motion to dismiss (ECF No. 43) is granted; and
2. This action is dismissed with prejudice.
Dated: October 3, 2017
2 / hoeft2615.mtd_SAC
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
Bivens is the federal analog to suits brought against state officials under 42 U.S.C. § 1983.
Ashcroft v. Iqbal, 556 U.S. 662, 676-76 (2009). “Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Id. at 676. “Only federal
officials who actually participate in alleged violations are subject to a Bivens-type suit.” O’Neal
v. Eu, 866 F.2d 314 (9th Cir. 1989) (collecting cases). “A plaintiff must plead more than merely
a negligent act by a federal official in order to state a colorable claim under Bivens.” Id.
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