Brown-Younger v. Social Security Administration

Filing 32

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk to file Complaint. Complaint is DISMISSED without prejudice. Plaintiff shall file an amended complaint by 8/8/11 or this case will be dismissed with prejudice. Signed by Magistrate Judge Lawrence R. Leavitt on 7/12/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KIRSHA BROWN-YOUNGER,

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Plaintiff,

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v.

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SOCIAL SECURITY ADMINISTRATION,

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Defendant.

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2:11-cv-00506-GMN-LRL
ORDER

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Plaintiff has submitted an Application to Proceed In Forma Pauperis and a Complaint (#1). The

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court finds that plaintiff is unable to prepay the filing fee. Further, although the court will dismiss the

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Complaint, it will do so without prejudice to allow plaintiff to cure the deficiencies listed below.

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I.

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that she is unable

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to prepay fees and costs or give security for them. Accordingly, her request to proceed in forma

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pauperis will be granted pursuant to § 1915(a).

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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to § 1915(e). Specifically, federal courts are given the authority to dismiss a case

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if the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. § 1915(e)(2). “To survive

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a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim

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to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (internal quotations and

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citation omitted).

In considering whether the plaintiff has stated a claim upon which relief can be granted, all

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material allegations in the complaint are accepted as true and are to be construed in the light most

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favorable to the plaintiff. Russel v. Landrieu, 621 f.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro

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se complaint are held to less stringent standards than formal pleading drafted by lawyers. Haines v.

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Kerner, 404 U.S. 519, 520 (1972) (per curiam). When a court dismisses a complaint under § 1915(e),

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the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,

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unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment.

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See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation omitted).

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III.

Instant Complaint

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Plaintiff alleges that defendant has engaged in “benefit misuse/fraud/employee misconduct” in

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violation of 42 U.S.C. § 408; 42 U.S.C. § 1320A-7b; 42 U.S.C. § 707; 42 U.S.C. §§ 1383(a)-(3) and

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(b)(4); and 42 U.S.C. § 1842. She seeks relief in the amount of $2.1 million. Plaintiff alleges that the

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defendant purposefully provided an overpayment to her, with the intent to improperly deduct/garnish

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another check at a later date. Complaint (#1-3) at 3. This was done, according to plaintiff, with the

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intent to financially inconvenience her. She also complains that employees of defendant provided

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incorrect information regarding health benefits to her. Id.

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As a preliminary matter, although plaintiff claims that defendants violated 42 U.S.C. § 1842,

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the court is unable to identify any such statute. Furthermore, plaintiff’s citations to 42 U.S.C. § 408;

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42 U.S.C. § 1320A-7b; 42 U.S.C. § 707 are misplaced. These are all criminal enforcement provisions

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for use by the government in instances of alleged fraud, misuse, and the making of false statements in

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connection with or in obtaining Social Security benefits. These do not provide for a civil private right

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of action. Hence plaintiff’s claims under these provisions must be dismissed.

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Plaintiff next asserts a cause of action under 1383(a)(1)-(3) and (b)(4). Section 1383(a) provides

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the procedure regarding “time, manner, form, and duration of payments; representative payees;

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promulgation of regulation” for Social Security benefit payments. Section 1383(b)(4) provides the types

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of collection practices that the Commissioner of Social Security may use in the event of an

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overpayment. The Commissioner may require a person who has received an overpayment of benefits

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to refund the excess amount. The recovery by the Commissioner will be waived if the recipient

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demonstrates that (1) he or is without fault in causing the overpayments; and (2) adjustment or recovery

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on account of such overpayment would defeat the purposes of the Act or be against equity or good

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conscience. 42 U.S.C. § 1383(b)(1); see also 20 C.F.R. § 416.553. Where a claimant satisfies both of

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these criteria, the Commissioner is deemed to have waived the right to recovery. Valente v. Secretary

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of Health and Human Services, 733 F.2d 1037, 1042 (2d Cir.1984); Center v. Schweiker, 704 F.2d 678,

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680 (2d Cir.1983).

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Here, plaintiff has not alleged that she was without fault in causing the overpayment and that

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recovery of the overpayment defeats the purposes of the Act. She only states in conclusory fashion that

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her checks have been improperly garnished “without proper cause” or “without due cause.” See

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Complaint (#1-3) at 2. Further, the Complaint does not indicate whether and/or when the Commissioner

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sent her notice of overpayment, what findings were made with regard to fault, or if a hearing was held

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on the matter. Hence, plaintiff’s Complaint must be dismissed. Plaintiff will, however, be afforded an

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opportunity to amend the Complaint to cure the deficiencies listed above.

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Accordingly, and for good cause shown,

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IT IS ORDERED that plaintiff’s Application to Proceed In Forma Pauperis (#1) is GRANTED.

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IT IS FURTHER ORDERED that plaintiff is permitted to maintain the action to conclusion

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without necessity of prepayment of any additional fees, costs, or security. This Order granting forma

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pauperis status shall not extend to the issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of Court shall file the complaint.

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IT IS FURTHER ORDERED that the Complaint will be dismissed without prejudice.

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IT IS FURTHER ORDERED that plaintiff shall file an amended complaint by August 8, 2011

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or her case will be dismissed with prejudice.

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DATED this 12th day of July, 2011.

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LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE

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