Webb v. Berryhill
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT re 7 Motion to Dismiss for Lack of Jurisdiction. Signed by JUDGE LESLIE E. KOBAYASHI on 11/23/2016. Pla intiff must file his motion for leave to file an amended complaint by January 19, 2017, and the motion must comply with the rulings in this Order. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on November 25, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANK WEBB JR.,
THE UNITED STATES SOCIAL
CIVIL 16-00233 LEK-RLP
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
On August 5, 2016, Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security (“Defendant” or “the
Commissioner”), filed a Motion to Dismiss Plaintiff’s Complaint
[Dkt. no. 7.]
Pro se Plaintiff Frank Webb, Jr.
(“Plaintiff”) did not respond to the Motion.
On October 12,
2016, this Court issued an entering order finding this matter
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion and the relevant legal
authority, Defendant’s Motion is HEREBY GRANTED IN PART AND
DENIED IN PART for the reasons set forth below.
Plaintiff filed his Complaint for Damages (“Complaint”)
on May 13, 2016.
Plaintiff alleges that he received Social
Security Supplemental Security Income (“SSI”) from April 1992
until May 1997, and he began receiving Social Security Disability
Insurance (“SSDI”) benefits in June 1997.
[Complaint at ¶ 9.]
Plaintiff states that, on November 8, 2010, he was “told” by
Defendant that: he had been overpaid SSI benefits in the amount
of $2,000.00; the Social Security Administration (“SSA”) would be
withholding $102.00 per month from his benefits until the
overpayment was repaid; and the State of Hawai`i began paying his
Medicare Insurance premiums as of September 2010.
[Id. at ¶ 2.]
Plaintiff alleges that the SSA never provided him with “a written
statement of the overpayment.”
On November 14, 2014, Plaintiff went to the SSA’s
Honolulu office to find out why the SSA was still withholding
monthly payments because the $2,000.00 had been paid off.
SSA informed him that he still had thirteen payments remaining.
[Id. at ¶ 3.]
On December 15, 2014, Plaintiff requested access
to records showing the overpayment, but the SSA did not provide
[Id. at ¶ 4, Exh. A.]
Plaintiff submits his Form SSA-1099 – Social Security
Benefit Statement (“Form 1099”) for 2012, 2014, and 2015.
2012 Form 1099 reflects that no benefits were repaid to the SSA
in 2012, and the 2014 Form 1099 reflects the same for 2014.
2015 Form 1099 reflects repayment of $81.60.
Plaintiff states that his 2011 Form 1099 also reflects
no repayment, although he did not attach a copy of the 2011 Form
He also states that “the other 1099 Form was misplaced.”
[Complaint at ¶ 5.]
In March 2015, Plaintiff called the SSA to
ask about why the Form 1099s did not reflect the $102.00 monthly
deductions, but was told that the deduction “was a tax credit for
low-income people, and that the Plaintiff did not qualify for
[Id. at ¶ 6.]
Plaintiff also requested an appointment to
discuss the matter at the office, but the SSA would not give him
In March 2015, Plaintiff sought help from Senator
Mazie Hirono’s office.
Senator Hirono sent Plaintiff a letter
dated August 14, 2015 with documents her office obtained about
[Id. at ¶ 7, Exh. B at 4.1]
documents was a letter dated May 3, 2010 to Plaintiff from the
SSA informing him that he had received more SSI payments than he
should have and that he owed the SSA $6,813.60 (“5/3/10 Letter”).
The 5/3/10 Letter stated that the SSA would withhold $102.00 per
month from his Social Security benefits until it collected the
[Complaint, Exh. B at 2.]
It also stated that: “If
you pay Medicare premiums . . . , we deducted them from your
benefits to get the amount you will receive.”
Exhibit B consists of three different documents, but the
exhibit is not consecutively paginated. The page numbers in this
Order refer to the page numbers in the district court’s
electronic case filing system.
emphasizes that the 5/3/10 Letter is addressed to his former
residence in Seattle, and he was living in Honolulu at the time
of the letter.
Plaintiff states that this was the first time he
saw the 5/3/10 Letter.
[Complaint at ¶ 7.]
Plaintiff received a letter dated October 6, 2015 from
the SSA, stating that from May 2010 to September 2015 the SSA
collected $6,630.00 from his benefits toward the $6,813.60
overpayment (“10/6/15 Letter”).
The 10/6/15 Letter stated that
the SSA would deduct $102.00 from his October 2015 benefits, and
$81.60 from his November 2015.
[Id., Exh. B at 3.]
argues that, although the SSA collected the full $6,813.60
overpayment, the SSA failed to reflect the repayments on the
[Complaint at ¶ 8.]
In addition, Plaintiff alleges
that SSA records state that he did not stop receiving SSI
benefits until January 1999, even though he stopped receiving SSI
benefits in May 1997.
He states that this could have been the
cause of the alleged overpayment of SSI benefits.
[Id. at ¶ 9.]
Plaintiff brings his claims pursuant to 28 U.S.C.
[Id. at ¶ 10.]
He alleges: willful and intentional
deceit because the SSA failed to repay him $331.60 for Medicare
premiums it deducted after the State of Hawai`i began paying his
premiums (“Count I”); willful and intentional deceit because the
SSA told him that the amount of the overpayment was $2,000, when
it was actually $6,813.60 (“Count II”); willful and intentional
deceit because the SSA failed to apply the amounts deducted from
his monthly benefits to the $6,813.60 overpayment (“Count III”);
reckless breach of Defendant’s legal duty under 5 U.S.C.
§ 552a(d) because the SSA failed to provide requested records
(“Count IV”); [id. at pgs. 7-9;2] reckless and intentional breach
of Defendant’s legal duty under “Title II (2) of the Social
Security Act and Code of Federal Regulation 404-592” based on the
failure to properly apply the deducted amounts (“Count V”); [id.
at pg. 9;] and reckless infliction of severe mental anguish
because Defendant’s actions caused him “severe mental agony and
pain” (“Count VI”) [id. at pg. 10].
Plaintiff requests that this Court: enter judgment in
his favor; send a copy of the Complaint to Senator Hirono’s
office, requesting that Defendant be investigated for possible
fraud, or enter an order requiring Defendant to send the
Complaint to her office; an award of $25,000,000.00 in general
damages; statutory damages; and any other appropriate relief.
In the instant Motion, Defendant argues that this Court
must dismiss Plaintiff’s claims brought pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., and Title II
of the Social Security Act for lack of subject matter
The Complaint does not have page numbers, and not all of
the paragraphs are numbered. Where this Order cites the
Complaint by page numbers, it refers to the page numbers in the
district court’s electronic case filing system.
jurisdiction and for failure to state a claim.
this Court to dismiss Plaintiff’s claims with prejudice.
Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1)
authorizes a court to dismiss claims over which it
lacks proper subject matter jurisdiction. A court
may determine jurisdiction on a motion to dismiss
under Rule 12(b)(1) so long as “the jurisdictional
issue is [not] inextricable from the merits of a
case.” Kingman Reef Atoll Invs., L.L.C. v. United
States, 541 F.3d 1189, 1195 (9th Cir. 2008). A
plaintiff has the burden of proving that subjectmatter jurisdiction in fact exists. Thornhill
Publ’g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594
F.2d 730, 733 (9th Cir. 1979).
A challenge to the Court’s subject-matter
jurisdiction may be “facial or factual.” Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
Cir. 2004). In a facial attack, the party
challenging jurisdiction argues that the
allegations contained in a complaint are
insufficient “on their face” to invoke federal
jurisdiction. Id. A facial challenge, therefore,
mirrors a traditional motion to dismiss analysis.
The Court must take all allegations contained in
the pleading “to be true and draw all reasonable
inferences in [plaintiff’s] favor.” Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
Piedvache v. Ige, Civil No. 16-00138 DKW-RLP, 2016 WL 6516826, at
*2 (D. Hawai`i Nov. 2, 2016) (alterations in Piedvache).
traditional motion to dismiss analysis for a Fed. R. Civ. P.
12(b)(6) motion asks whether the plaintiff states a plausible
claim for relief.3
See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
Sovereign Immunity and FTCA Claims
Defendant first argues that this Court lacks
jurisdiction because there was no waiver of sovereign immunity.
This district court has stated:
Federal courts have no subject matter
jurisdiction to hear a claim against the United
States, absent a clear waiver of sovereign
immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.”).
“A waiver of sovereign immunity cannot be implied
but must be unequivocally expressed” in the text
of a statute. United States v. Mitchell, 45
U.S. 535, 538 (1980) (citation omitted).
Zeeman v. U.S. Dist. Court Dist. of Hawaii Prob. Office, CV 1400328 RSWL, 2016 WL 1559565, at *3 (D. Hawai`i Apr. 18, 2016).
Further, “[a]ny lawsuit against an agency of the United States or
against an officer of the United States in his or her official
capacity is considered an action against the United States.”
Vicente v. Takayama, CV 16-00497 DKW-RLP, 2016 WL 5853724, at *4
Fed. R. Civ. P. 12(b) states, in pertinent part, that “a
party may assert the following defenses by motion: (1) lack of
subject-matter jurisdiction; . . . (6) failure to state a claim
upon which relief can be granted.”
(D. Hawai`i Oct. 4, 2016) (citing Sierra Club v. Whitman, 268
F.3d 898, 901 (9th Cir. 2001)).
Counts I, II, and III allege willful and intentional
deceit, and appear to be fraudulent misrepresentation claims.
Plaintiff states that he brings his claims pursuant to the FTCA.
[Complaint at ¶ 10.]
The FTCA waives sovereign immunity of the
United States, and permits tort suits for damages
against the government “in the same manner and to
the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674. It grants
district courts jurisdiction over civil actions
for money damages for negligent or wrongful acts
or omissions of government employees acting in the
scope of employment “under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred.”
[28 U.S.C.] § 1346(b)(1).
Benjamin v. United States, Civ. No. 16-00248 JMS-KSC, 2016 WL
5660400, at *3 (D. Hawai`i Sept. 28, 2016).
However, “the United
States and its agencies are immune from claims of fraud under the
Federal Tort Claims Act.”
Taylor v. U.S. Patent & Trademark
Office, 551 F. App’x 341 (9th Cir. 2013) (citing Owyhee Grazing
Ass’n, Inc. v. Field, 637 F.2d 694, 697 (9th Cir. 1981) (stating
that “claims against the United States for fraud or
misrepresentation by a federal officer are absolutely barred by
28 U.S.C. § 2680(h) [of the FTCA]”)).4
Section 2680(h) states that the provisions of the FTCA do
not apply to “[a]ny claim arising out of assault, battery, false
This Court therefore CONCLUDES that Counts I, II, and
III fail to state plausible claims because Defendant’s sovereign
immunity precludes Plaintiff’s misrepresentation claims.
Court therefore lacks subject matter jurisdiction over those
The Ninth Circuit has stated that, “[u]nless it is
absolutely clear that no amendment can cure the defect . . . a
pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.
Because this Court CONCLUDES that it is absolutely clear
that no amendment can cure the defect in Plaintiff’s fraudulent
misrepresentation claims, this Court GRANTS the Motion as to
Counts I, II, and III, and DISMISSES those claims WITH PREJUDICE.
Exhaustion Under the FTCA
Count VI is titled “Reckless Infliction of Sever[e]
[Complaint at pg. 10.]
This Court liberally
construes Count VI, in the context of the Complaint as a whole,
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” Section 2680(h) contains an
exception for “acts or omissions of investigative or law
enforcement officers of the United States Government,” but it is
inapplicable based on the factual allegations in the Complaint.
as a claim for intentional infliction of emotional distress
The Ninth Circuit has stated:
Notably absent from this list [in § 2680(h) of
intentional claims excluded], for our purposes, is
intentional infliction of emotional distress.
Although “a claim based on conduct constituting
the tort of intentional infliction of emotional
distress is not excluded . . . by § 2680(h),” it
is barred by § 2680(h) if “in substance the
conduct relied upon constituted a specifically
excluded tort.” Sheehan v. United States, 896
F.2d 1168, 1172 (9th Cir. 1990); see also Sabow v.
United States, 93 F.3d 1445, 1456 (9th Cir. 1996)
(“We focus our § 2680(h) inquiry on whether
conduct that constitutes an enumerated tort is
‘essential’ to a plaintiff’s claim.”).
Xue Lu v. Powell, 621 F.3d 944, 951–52 (9th Cir. 2010).
is possible for Plaintiff to bring an IIED claim against
Defendant argues that this Court does not have subject
matter jurisdiction over Count VI because Plaintiff failed to
exhaust his administrative remedies, as required by the FTCA.
Under the FTCA,
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or
This Court must liberally construe Plaintiff’s pleadings
because he is proceeding pro se. See, e.g., Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454
U.S. 364, 365, 102 S. Ct. 700, 701, 70 L. Ed. 2d 551 (1982) (per
employment, unless the claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally
denied by the agency in writing and sent by
certified or registered mail. The failure of an
agency to make final disposition of a claim within
six months after it is filed shall, at the option
of the claimant any time thereafter, be deemed a
final denial of the claim for purposes of this
section. . . .
28 U.S.C. § 2675(a).
This exhaustion requirement is
jurisdictional and “must be strictly adhered to” because the
FTCA’s waiver of sovereign immunity “must be strictly construed
in favor of the United States.”
Valadez-Lopez v. Chertoff, 656
F.3d 851, 855 (9th Cir. 2011) (citation and internal quotation
If a claim brought under the FTCA has not been
properly exhausted, the district court must dismiss it for lack
of subject matter jurisdiction.
See Goodman v. United States,
298 F.3d 1048, 1054–55 (9th Cir. 2002).
Plaintiff’s Complaint does not plead any facts
addressing whether he exhausted his administrative remedies.
This Court therefore CONCLUDES that it does not have subject
matter jurisdiction over Count VI.
Defendant’s Motion includes a declaration which
Defendant contends establishes that the SSA has never received an
administrative tort claim from Plaintiff.
[Mem. in Supp. of
Motion at 7, Decl. of Brandon Dell’Aglio in Supp. of Def.’s
Motion to Dismiss (“Dell’Aglio Decl.”).]
As a general rule, this Court’s scope of review in
considering a motion to dismiss is limited to the allegations in
See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010).
“[A] court may consider evidence on
which the complaint necessarily relies if: (1) the complaint
refers to the document; (2) the document is central to the
plaintiff’s claim; and (3) no party questions the authenticity of
the copy attached to the 12(b)(6) motion.”
internal quotation marks omitted).
Id. (citations and
Ordinarily, consideration of
other materials requires the district court to convert a motion
to dismiss into a motion for summary judgment.
Yamalov v. Bank
of Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL 1875901, at *7
n.7 (D. Hawai`i May 16, 2011) (citing Parrino v. FHP, Inc., 146
F.3d 699, 706 n.4 (9th Cir. 1998)).6
The Dell’Aglio Declaration
is not a document on which Plaintiff’s Complaint necessarily
relies, and this Court – in the exercise of its discretion –
declines to convert the instant Motion into a motion for summary
This Court therefore will not consider the Dell’Aglio
Declaration in ruling on the instant Motion.
Based on the allegations in the Complaint, this Court
CONCLUDES that it is arguably possible for Plaintiff to cure the
defect in Count VI by amending his Complaint to allege facts
Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681–82 (9th Cir. 2006) (per curiam).
showing that the exhaustion requirement is satisfied.
is therefore GRANTED IN PART AND DENIED IN PART as to Count VI.
The Motion is GRANTED insofar as Count VI is DISMISSED, and it is
DENIED insofar as the dismissal is WITHOUT PREJUDICE.
Claim Under the Social Security Act
Count V alleges reckless and intentional breach of
Defendant’s legal duty under “Title II (2) of the Social Security
Act and Code of Federal Regulation 404-592” based on the failure
to properly apply the amounts deducted from Plaintiff’s benefits.
To the extent that Count V attempts to assert an affirmative
claim for relief to recover amounts that Plaintiff alleges were
improperly withheld from his Title II disability benefits, the
Social Security Act does not authorize such claims.
§ 405(h) states:
The findings and decision of the Commissioner of
Social Security after a hearing shall be binding
upon all individuals who were parties to such
hearing. No findings of fact or decision of the
Commissioner of Social Security shall be reviewed
by any person, tribunal, or governmental agency
except as herein provided. No action against the
United States[ or] the Commissioner of Social
Security . . . shall be brought under section 1331
or 1346 of Title 28 to recover on any claim
arising under this subchapter.
This district court has stated:
The United States Supreme Court has found
that Section 405(g) provides the exclusive
mechanism for bringing Social Security Act claims
in federal court. Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 10 (2000).
Section 405(h) bars all other claims, including
claims that are “inextricably intertwined” with a
claim for Social Security benefits or if the
“substantive basis” of the claim is the Social
Security Act. Heckler v. Ringer, 466 U.S. 602,
Berry v. Comm’r of Soc. Sec. Admin., CIVIL NO. 14-00414 HG-RLP,
2016 WL 727104, at *7 (D. Hawai`i Feb. 23, 2016).
Court CONCLUDES that, to the extent Count V attempts to assert an
affirmative claim for relief based on withheld benefits, it is
barred by § 405(h), and this Court lacks subject matter
jurisdiction over Plaintiff’s claim.
This Court also liberally construes Count V as an
attempt to appeal the SSA’s decision to withhold benefits or the
manner in which the SSA applied the withheld benefits.
§ 405(g), however:
Decisions are . . . not subject to review “unless
they challenge a ‘final decision of the Secretary
made after a [statutorily mandated] hearing.’”
Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir.
2013) (alteration in Dexter) (some citations
42 U.S.C. § 405(g) governs judicial review of social
security decisions. It states, inter alia:
Any individual, after any final decision of the
Commissioner of Social Security made after a
hearing to which he was a party, irrespective of
the amount in controversy, may obtain a review of
such decision by a civil action commenced within
sixty days after the mailing to him of notice of
such decision or within such further time as the
Commissioner of Social Security may allow. . . .
omitted) (quoting Califano v. Sanders, 430 U.S.
99, 108, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977)).
“A final judgment consists of two elements:
the presentment of a claim to the Secretary and
the exhaustion of administrative remedies.”
Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir.
1993). . . .
Morando v. Colvin, Civil No. 13–00485 LEK–KSC, 2014 WL 2215922,
at *3 (D. Hawai`i May 28, 2014) (some alterations in Morando).
This district court has described the exhaustion process for
social security claims as follows:
The Social Security Administration’s
regulations require a claimant to complete a fourstep administrative review process to present a
claim and obtain a judicially reviewable final
decision. 20 C.F.R. § 416.1400(a). If the
claimant does not pursue all levels of
administrative review, the claimant is bound by
the unappealed administrative determination.
20 C.F.R. § 416.1400(b).
At the first agency level, the Social
Security Administration makes an initial
determination about the claimant’s entitlement to
benefits. 20 C.F.R. § 416.1402. If the claimant
is dissatisfied with the initial determination, he
or she may ask for reconsideration within 60 days.
20 C.F.R. § 416.1407; 20 C.F.R. § 416.1409(a). If
the claimant is dissatisfied with the
reconsideration determination, he or she may,
within 60 days, request a hearing before an
Administrative Law Judge. 20 C.F.R. §§ 416.1429,
“In 1994 amendments to 42 U.S.C. § 405 replaced references
to the Secretary of Health and Human Services with the
Commissioner of Social Security. We refer to the Commissioner in
discussing pre–1994 decisions.” Chapman v. Apfel, 236 F.3d 480,
484 n.7 (9th Cir. 2000).
If the claimant is dissatisfied with the
decision of the Administrative Law Judge, he or
she may, within 60 days, request that the Appeals
Council review the decision. 20 C.F.R.
§§ 416.1467, 416.1468. Only after the Appeals
Council either issues its own decision, or denies
the request for review, has the claimant completed
all the administrative steps. 20 C.F.R.
Only upon the completion
administrative review process
decision of the Commissioner”
right to judicial review. 42
U.S.C. § 1383(c); 20 C.F.R. §
of the full
is there a “final
that triggers the
U.S.C. §§ 405(g), 42
Berry, 2016 WL 727104, at *8.
Although the presentment requirement is a nonwaiveable, jurisdictional requirement, see Bowen v. City of New
York, 476 U.S. 467, 482-83 (1986), the exhaustion requirement is
subject to waiver by the Commissioner or the courts.
F.3d at 921.
The Ninth Circuit has “adopted a three-part test
for determining whether a particular case merits
judicial waiver of § 405(g)’s exhaustion
requirement. The claim must be (1) collateral to
a substantive claim of entitlement
(collaterality), (2) colorable in its showing that
denial of relief will cause irreparable harm
(irreparability), and (3) one whose resolution
would not serve the purposes of exhaustion
(futility).” Kildare v. Saenz, 325 F.3d 1078,
1082 (9th Cir. 2003) (internal quotation marks and
Morando, 2014 WL 2215922, at *3.
Plaintiff’s Complaint does not contain any allegations
which would establish that: he presented his appeal regarding the
withheld benefits to Defendant; and he exhausted his
administrative remedies or Defendant waived the exhaustion
Further, nothing in the Complaint would support
judicial waiver of the exhaustion requirement.
therefore CONCLUDES that it lacks subject matter jurisdiction
over Count V, to the extent that Count V attempts to bring an
appeal pursuant to § 405(g).
To the extent that Count V attempts to assert an
affirmative claim for relief, this Court CONCLUDES that it is
absolutely clear that Plaintiff cannot cure the defects in his
claim by amendment.
Thus, this Court GRANTS the Motion insofar
as that portion of Count V is DISMISSED WITH PREJUDICE.
extent that Count V attempts to assert a § 405(g) appeal of a
benefits decision, this Court CONCLUDES that it is arguably
possible for Plaintiff to cure the defects in his appeal by
Thus, this Court GRANTS the Motion insofar as that
portion of Count V is DISMISSED, but it DENIES the Motion insofar
as the dismissal is WITHOUT PREJUDICE.
Failure to State a Claim
Because this Court has dismissed all of the claims
addressed in Defendant’s Motion for lack of subject matter
jurisdiction, this Court does not reach the portion of the Motion
based on Rule 12(b)(6).
III. Summary and Leave to Amend
This Court has dismissed Counts I, II, III, and the
portion of Count V which attempts to allege an affirmative claim
for relief with prejudice.
This Court has dismissed the portion
of Count V which attempts to assert a § 405(g) appeal and
Count VI without prejudice.
This Court notes that the Motion did
not address Count IV, which alleges that Defendant violated 5
U.S.C. § 552(d).
This Order therefore makes no findings or
conclusions regarding the merits of Count IV, which remains
pending before this Court.
Insofar as the dismissal of the portion of Count V
asserting a § 405(g) appeal and the dismissal of Count VI are
without prejudice, this Court will allow Plaintiff to file a
motion for leave to file an amended complaint (“Motion for
Plaintiff must attach his proposed amended complaint to
the Motion for Leave.
See Local Rule LR10.3 (“Any party filing
or moving to file an amended complaint . . . shall reproduce the
entire pleading as amended and may not incorporate any part of a
prior pleading by reference, except with leave of court.”).
Court ORDERS Plaintiff to file his Motion for Leave by
January 19, 2017.
The Motion for Leave will be referred to the
This Court CAUTIONS Plaintiff that his proposed amended
complaint must state his § 552a(d) claim, his IIED claim, and his
claim asserting a § 405(g) appeal, as well as all of the facts
and all of the legal theories that these claims rely upon.
Plaintiff cannot rely upon or incorporate by reference any
portion of his original Complaint.
This Court will not consider
Plaintiff’s amended complaint collectively with his prior filings
in this case.
This Court also CAUTIONS Plaintiff that, if he fails to
file his Motion for Leave by January 19, 2017, the IIED claim and
the claim asserting a § 405(g) appeal – which this Court
dismissed without prejudice in this Order – will be dismissed
In that instance, Plaintiff’s § 552a(d) claim in
the original Complaint will be the only claim remaining in this
Further, this Court CAUTIONS Plaintiff that, even if the
magistrate judge grants his Motion for Leave and allows him to
file his proposed amended complaint, this Court may still dismiss
the amended IIED claim and/or the amended claim asserting a
§ 405(g) appeal with prejudice if Plaintiff fails to cure the
defects identified in this Order.
On the basis of the foregoing, Defendant’s Motion to
Dismiss Plaintiff’s Complaint, filed August 5, 2016, is HEREBY
GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED
insofar as: 1) Counts I, II, III, V, and VI are DISMISSED; and
2) the dismissal of Counts I, II, and III, and the portion of
Count V alleging an affirmative claim for relief is WITH
The Motion is DENIED insofar as the dismissal of the
portion of Count V asserting a § 405(g) appeal and the dismissal
of Count VI is WITHOUT PREJUDICE.
This Court does not construe
Defendant’s Motion as seeking the dismissal of Count IV, and that
claim remains pending in this case.
Plaintiff must file his motion for leave to file an
amended complaint by January 19, 2017, and the motion must comply
with the rulings in this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 23, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
FRANK WEBB, JR. V. UNITED STATES SOCIAL SECURITY ADMINISTRATION;
CIVIL NO. 16-00233 LEK-RLP; ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
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