Smith v. Social Security Administration Department of California

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND GRANTING re 4 MOTION for Leave to Proceed in forma pauperis filed by Adrian Reynard Smith. Amended Complaint due by 11/2/2017. Signed by Chief Magistrate Judge Joseph C. Spero on 9/27/17. (klhS, COURT STAFF) (Filed on 9/27/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ADRIAN REYNARD SMITH, 7 Plaintiff, Case No. 17-cv-03768-JCS (PR) 8 v. 9 SOCIAL SECURITY ADMINISTRATION, 10 Dkt. No. 4 Defendant. 11 United States District Court Northern District of California ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 12 13 INTRODUCTION 14 Plaintiff, a former California state prisoner, alleges in this federal suit that the 15 Social Security Administration failed to notify him that his Social Security number had 16 been misused. The complaint fails to state any claim for relief. Accordingly, the Court 17 DISMISSES the complaint with leave to file an amended complaint on or before 18 November 2, 2017.1 DISCUSSION 19 20 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to „state a 21 22 claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 26 1 27 28 Plaintiff consented to magistrate judge jurisdiction. (Dkt. No. 5.) The magistrate judge, then, has jurisdiction to issue this order, even though defendants have not been served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995). 1 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 2 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 3 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 4 (9th Cir. 1994). 5 B. 6 Legal Claims Plaintiff alleges that his “Social Security number has been used wrongfully for 7 filing taxes, for which I did not give permission to file.” (Compl. at 3.) He further alleges 8 that “The Social Security Administration . . . has not contacted me regarding these 9 incidents that occur[r]ed” in 2014, 2015, and 2016. (Id.) These allegations are insufficient to state a claim for relief. First, plaintiff has not 11 United States District Court Northern District of California 10 shown any liability on the part of the Social Security Administration (“SSA”). It appears 12 that some person or persons misused his Social Security number (“SSN”). The fault, 13 therefore, lies with such persons, not with the SSA. 14 Second, plaintiff has not identified any law that requires that the SSA contact him 15 when fraudulent use of his SSN occurs. In his amended complaint, plaintiff must identify 16 what law or legal theory forms the basis of the SSA‟s liability. 17 Third, plaintiff‟s allegations are bare of specifics, such as what amounts he believes 18 are owed to him because of the misuse of his SSN. In his amended complaint, plaintiff 19 must include as many details as he can for each of the years he lists in his complaint. 20 Fourth, plaintiff should consider whether filing suit is the best means of securing 21 redress. He should consider contacting the SSA or the IRS to discuss the various methods 22 available to remedy whatever wrongs were done to him, and voluntarily dismiss this 23 lawsuit. 24 25 CONCLUSION The complaint is DISMISSED with leave to amend. Plaintiff shall file an 26 amended complaint on or before November 2, 2017. The first amended complaint must 27 include the caption and civil case number used in this order (17-03768 JCS (PR)) and the 28 words FIRST AMENDED COMPLAINT on the first page. It must address all deficiencies 2 1 discussed above. Because an amended complaint completely replaces the previous 2 complaints, plaintiff must include in his first amended complaint all the claims he wishes 3 to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 4 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior 5 complaint by reference. Any claims not raised in the amended complaint will be deemed 6 waived. Failure to file an amended complaint in accordance with this order will result in 7 dismissal of this action without further notice to plaintiff. 8 It is plaintiff‟s responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice 10 of Change of Address.” He must comply with the Court‟s orders in a timely fashion or ask 11 United States District Court Northern District of California 9 for an extension of time to do so. Failure to comply may result in the dismissal of this 12 action pursuant to Federal Rule of Civil Procedure 41(b). 13 Plaintiff‟s motion to proceed in forma pauperis (Dkt. No. 4) is GRANTED. 14 The Clerk shall terminate Dkt. No. 4. 15 IT IS SO ORDERED. 16 Dated: September 27, 2017 _________________________ JOSEPH C. SPERO Chief Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN REYNARD SMITH, Case No. 17-cv-03768-JCS Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 United States District Court Northern District of California 11 12 13 14 15 SOCIAL SECURITY ADMINISTRATION DEPARTMENT OF CALIFORNIA, Defendant. I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 27, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Adrian Reynard Smith ID: #567942 3554 17th Street, Apt. 2 San Francisco, CA 94110 19 20 Dated: September 27, 2017 21 22 23 24 25 Susan Y. Soong Clerk, United States District Court By:________________________ Karen Hom, Deputy Clerk to the Honorable JOSEPH C. SPERO 26 27 28 4

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