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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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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Following a hearing on July 19, 2017, plaintiff’s complaint was dismissed with leave to

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amend. (ECF No. 41.) Before the court is defendant’s motion to dismiss plaintiff’s Second

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Amended Complaint (“SAC”). (ECF No. 43.) Plaintiff has filed an opposition, and defendant

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has replied. (ECF Nos. 45 & 46.) On September 13, 2017, the motion was submitted without

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oral argument.1

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As in her initial complaint, plaintiff claims that defendant Ballon, a Social Security

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Administration manager in Stockton, California, personally violated her federal due process rights

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The parties have consented to magistrate judge jurisdiction. ECF Nos. 6 and 14.

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under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).2

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Plaintiff alleges that Ballon responded to a 2014 letter from Senator Boxer’s Department of

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Constituent Services concerning plaintiff’s inquiry into unpaid support. Defendant allegedly

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“denied having been properly served . . . and denied that there was ever a valid Earnings

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Assignment Order[.]” (SAC, ¶ 25.) In its July 26, 2017 order dismissing plaintiff’s initial

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complaint with leave to amend, the court explained that plaintiff failed to state a Bivens claim

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against defendant; the SAC does not cure the pleading defects discussed in that order.

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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

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violation of these provisions does not give rise to a Bivens claim, however, as plaintiff has not

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alleged intentional conduct amounting to a constitutional tort. Nor do defendant’s alleged

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violations of state law give rise to a Bivens claim. Although the court may exercise supplemental

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jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under

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federal law. See 28 U.S.C. § 1367.

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Because plaintiff has failed to state a cognizable claim after two attempts, and it appears

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that further leave to amend would be futile, the undersigned will grant defendant’s motion and

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dismiss this action with prejudice.

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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. 43) is granted; and

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2. This action is dismissed with prejudice.

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Dated: October 3, 2017

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2 / hoeft2615.mtd_SAC

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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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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