Hoeft v. Ballon

Filing 49

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONICA HOEFT, 12 Plaintiff, 13 14 No. 2:16-cv-02615 CKD (PS) v. ORDER AL BALLON, 15 Defendant. 16 Following a hearing on July 19, 2017, plaintiff’s complaint was dismissed with leave to 17 18 amend. (ECF No. 41.) Before the court is defendant’s motion to dismiss plaintiff’s Second 19 Amended Complaint (“SAC”). (ECF No. 43.) Plaintiff has filed an opposition, and defendant 20 has replied. (ECF Nos. 45 & 46.) On September 13, 2017, the motion was submitted without 21 oral argument.1 22 As in her initial complaint, plaintiff claims that defendant Ballon, a Social Security 23 Administration manager in Stockton, California, personally violated her federal due process rights 24 ///// 25 ///// 26 27 1 The parties have consented to magistrate judge jurisdiction. ECF Nos. 6 and 14. 28 1 1 under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).2 2 Plaintiff alleges that Ballon responded to a 2014 letter from Senator Boxer’s Department of 3 Constituent Services concerning plaintiff’s inquiry into unpaid support. Defendant allegedly 4 “denied having been properly served . . . and denied that there was ever a valid Earnings 5 Assignment Order[.]” (SAC, ¶ 25.) In its July 26, 2017 order dismissing plaintiff’s initial 6 complaint with leave to amend, the court explained that plaintiff failed to state a Bivens claim 7 against defendant; the SAC does not cure the pleading defects discussed in that order. 8 9 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 10 violation of these provisions does not give rise to a Bivens claim, however, as plaintiff has not 11 alleged intentional conduct amounting to a constitutional tort. Nor do defendant’s alleged 12 violations of state law give rise to a Bivens claim. Although the court may exercise supplemental 13 jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under 14 federal law. See 28 U.S.C. § 1367. 15 Because plaintiff has failed to state a cognizable claim after two attempts, and it appears 16 that further leave to amend would be futile, the undersigned will grant defendant’s motion and 17 dismiss this action with prejudice. 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Defendant Ballon’s motion to dismiss (ECF No. 43) is granted; and 20 2. This action is dismissed with prejudice. 21 Dated: October 3, 2017 22 23 2 / hoeft2615.mtd_SAC _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 2 25 26 27 28 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. 2

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