Hoeft v. Ballon

Filing 63

AMENDED 49 ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/12/18 ORDERING that Defendant Ballon's motion to dismiss (ECF No. 43 ) is GRANTED; and this action is DISMISSED with prejudice. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MONICA HOEFT,

12
13
14
15

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

Plaintiff,
v.

AMENDED ORDER

AL BALLON,
Defendant.

16
17

In light of the Ninth Circuit’s July 19, 2018 order of remand, the court issues this

18

amended order. See ECF No. 58 (“A review of the record demonstrates that defendant Ballon,

19

who was substituted as the defendant on February 9, 2017, did not consent to proceed before the

20

magistrate judge.”). Defendant Ballon has since filed his consent to magistrate judge jurisdiction,

21

along with a request for entry of judgment. ECF Nos. 59 & 60. As both parties have now

22

consented pursuant to 28 U.S.C. § 636(c) and no further use of judicial resources (i.e., reassigning

23

the case to the district judge and issuing findings and recommendations) appears necessary, the

24

undersigned issues this amended order of judgment, otherwise unchanged from the judgment

25

entered October 3, 2017. See ECF Nos. 49 & 50.

26

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

27

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

28

Amended Complaint (“SAC”). (ECF No. 43.) Plaintiff has filed an opposition, and defendant
1

1

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

2

oral argument.

3

As before, plaintiff claims that defendant Ballon, a Social Security Administration

4

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

5

v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 Plaintiff alleges

6

that Ballon responded to a 2014 letter from Senator Boxer’s Department of Constituent Services

7

concerning plaintiff’s inquiry into unpaid support. Defendant allegedly “denied having been

8

properly served . . . and denied that there was ever a valid Earnings Assignment Order[.]” (SAC,

9

¶ 25.) In its July 26, 2017 order, the court explained why plaintiff failed to state a Bivens claim

10

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

11

Plaintiff asserts a cause of action under 42 U.S.C. § 659, which governs federal

12

garnishment for purposes of enforcing child support and alimony allegations. Any alleged

13

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

14

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

15

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

16

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

17

federal law. See 28 U.S.C. § 1367.

18

Because plaintiff has failed to state a cognizable claim after multiple attempts and it

19

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

20

motion and dismiss this action with prejudice.

21

////

22

////

23

////

24
1

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

1

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

2

1. Defendant Ballon’s motion to dismiss (ECF No. 43) is granted; and

3

2. This action is dismissed with prejudice.

4

Dated: September 12, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

5
6
7
8
9
10

2 / hoeft2615.mtd_SAC_amended

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3