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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 GINNY RENE BURNS, Case No. 1:19-cv-01534-SAB

10 Plaintiff, ORDER GRANTING PLAINTIFF LEAVE

TO FILE FIRST AMENDED COMPLAINT

11 v. (ECF No. 1) 12 SOCIAL SECURITY ADMINISTRATION,

THIRTY DAY DEADLINE

13 Defendant.

14 15 Ginny Rene Burns (“Plaintiff”), proceeding pro se and in forma pauperis, filed a 16 complaint in this action against the Commissioner of Social Security. 17 I. 18 SCREENING REQUIREMENT 19 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 20 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 21 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 22 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 23 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 24 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 25 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 26 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 27 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 1 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 2 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 3 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 4 In determining whether a complaint fails to state a claim, the Court uses the same 5 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 6 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 7 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 10 544, 555 (2007)). 11 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 12 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 13 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 14 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 15 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 16 short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 17 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient 18 factual content for the court to draw the reasonable conclusion that the defendant is liable for the 19 misconduct alleged. Iqbal, 556 U.S. at 678. 20 II. 21 DISCUSSION 22 A. Allegations in Complaint 23 Plaintiff’s complaint is incomprehensible. Plaintiff attaches a letter from the Social 24 Security Administration, dated March 18, 2016, which informs her that she “cannot enter any 25 Social Security office for any reason. This restriction means that if you enter a Social Security 26 office, you can be arrested and charged with trespassing.” (ECF No. 1 at 71 (emphasis in 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 original). The letter states:

2 Why You May No Longer Enter An Office

3 Your actions in the WEST FRESNO CA Social Security office violated our regulations. These regulations prohibit threatening or disorderly conduct on 4 Federal property or directed at our personnel. Specifically, on 03/18/2016, you assault a federal officer, and was disruptive and disorderly in the SSA office. 5 6 (Id. (errors in original).) Plaintiff was advised that she may only enter an SSA office if she 7 receives “a certified letter with the specific date and time of an appointment.” (Id. 8 (emphasis in original).) Plaintiff was also provided with information on how to appeal the letter 9 should she disagree with the decision. (Id. at 8.) 10 Plaintiff’s complaint appears to state that she did nothing wrong and is entitled to more 11 benefits that were withheld giving her nine hundred dollars. However, the basis of Plaintiff’s 12 claims in this action are not clear. The Court cannot determine if Plaintiff is challenging the 13 letter prohibiting her from entering any Social Security office or if her claim is based on the 14 withholding of benefits. Plaintiff shall be provided with an opportunity to file an amended 15 complaint to clarify the basis of her claims and is provided with the following legal standards. 16 B. Denial of Benefits Under the Social Security Act 17 Generally, the United States and its agencies are entitled to sovereign immunity from suit 18 unless Congress has expressly waived immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 19 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 20 F.3d 705, 707 (9th Cir. 1997). “Any waiver of immunity must be ‘unequivocally expressed,’ and 21 any limitations and conditions upon the waiver ‘must be strictly observed and exceptions thereto 22 are not to be implied.’ ” Hodge, 107 F.3d at 707 (quoting Lehman v. Nakshian, 453 U.S. 156, 23 160-61 (1981).) 24 In the Social Security Act, the United States has waived sovereign immunity only for 25 limited judicial review of the Social Security Administration’s final decisions. Mathews v. 26 Eldridge, 424 U.S. 319, 327 (1976). Under 42 U.S.C. § 405(g), “[a]ny individual, after any final 27 decision of the Commissioner of Social Security made after a hearing to which he was a party, 1 commenced within sixty days after the mailing to him of notice of such decision or within such 2 further time as the Commissioner of Social Security may allow.” Congress has strictly limited 3 the Court’s jurisdiction of over Social Security actions.

4 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 5 provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 6 or 1346 of Title 28 to recover on any claim arising under this subchapter. 7 42 U.S.C. § 405(h). 8 To the extent that Plaintiff is attempting to appeal any final decision of the Social 9 Security Commissioner, the proper defendant is the Commissioner of Social Security, not the 10 Social Security Administration. See 42 U.S.C. 405(g). Further, if Plaintiff is seeking to appeal a 11 final decision of the Commissioner, she must demonstrate that she has complied with the 12 requirements of Section 405(g), including that she has received a final decision and that this 13 action is filed “within sixty days after the mailing to [her] of notice of such decision” after a 14 hearing. See 42 U.S.C. 405(g). 15 Plaintiff is advised that to comply with 405(g) an individual must exhaust administrative 16 remedies in order to challenge the denial of Social Security benefits. This means that before 17 challenging a denial of benefits or the amount received, a claimant must file for reconsideration 18 of that decision with the Social Security Administration. 20 C.F.R. §§ 404.905, 404.909. If an 19 adverse decision is rendered, an individual may request that an administrative law judge (“ALJ”) 20 hold a hearing. 20 C.F.R. § 404.929. If the ALJ issues an adverse decision, an appeal may be 21 filed with the Appeals Council. 20 C.F.R. § 404.955. Any appeal to the Appeals Council must 22 be filed within sixty days of the ALJ’s decision. 20 C.F.R. § 404.968. Once the Appeals 23 Council issues its decision, a claimant can file a complaint in the United States District Court, 24 but this complaint must be filed within sixty days of the Appeals Council’s order. 42 U.S.C. § 25 405(g). 26 In order to seek judicial review of a denial of Social Security benefits and/or disability 27 benefits, an individual must have followed the appeals process outlined above including filing a 1 determination from the Appeals Council. There are no allegations in the complaint that Plaintiff 2 applied for or was receiving Social Security benefits, appealed an adverse decision, had a hearing 3 regarding the denial of benefits, and received a final decision of the Commissioner. The 4 complaint does not contain sufficient information for the Court to determine the sufficiency of 5 Plaintiff’s claim under Section 405(g). However, Plaintiff will be allowed an opportunity to 6 amend this claim because she may be able to allege sufficient facts to support a claim appealing 7 a decision to deny her application for benefits. 8 C. March 18, 2016 Letter 9 To the extent that Plaintiff is challenging the letter preventing her from entering any 10 Social Security office, this court does not have jurisdiction unless the claim arises under the 11 Social Security Act. A claim arises under the Social Security Act when a plaintiff seeks to 12 recover Social Security benefits or when the Act “provides both the standing and the substantive 13 basis for” the claim. Weinberger v. Salfi, 422 U.S. 749, 760–61 (1975). Claims clearly “arise 14 under” the Act “where an individual seeks a monetary benefit from the agency . . . the agency 15 denies the benefit, and the individual challenges the lawfulness of that denial”. Shalala v. Ill. 16 Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000). Such a claim related to a monetary 17 benefit “arises under” the Social Security Act “irrespective of whether the individual challenges 18 the agency’s denial on evidentiary, rule-related, statutory, constitutional, or other legal grounds.” 19 Id. 20 In Kaiser, the Ninth Circuit applied a two-part test to determine if the claims arose under 21 Medicare to determine if they could proceed under section 405(g). First, claims that are 22 “inextricably intertwined” with the benefits determination may arise under Medicare. Kaiser, 23 347 F.3d at 1112 (quoting Heckler v. Ringer, 466 U.S. 602, 615 (1984)). Second, claims for 24 which “both the standing and the substantive basis for the presentation’ of the claims” is the Act 25 may arise under Medicare. Kaiser, 347 F.3d at 1112 (quoting Ringer, 466 U.S. at 615, and 26 Weinberger, 422 U.S. at 760–61). 27 Here, Plaintiff has alleged no facts by which the Court could find that the denial of entry 1 Additionally, the Social Security Act does not provide the standing and substantive basis 2 for any claim based upon prohibiting Plaintiff from entering any Social Security office. The 3 claim does not challenge any payment of benefits to Plaintiff. The Act itself does not provide 4 that an individual has a right to enter a Social Security office and if Plaintiff were to prevail on 5 the claim it would not affect any substantive benefits under the Act. Rather, Plaintiff’s claims 6 would arise under the Due Process Clause or the First Amendment; and the United States did not 7 waive sovereign immunity as to claims that arise under the Constitution of the United States. 42 8 U.S.C. § 405(h). Plaintiff has failed to allege any facts by which the Court can reasonably infer 9 that she could state a claim under the Social Security Act based on prohibiting her from 10 physically entering any Social Security Office. 11 C. Leave to Amend 12 Plaintiff shall be granted leave to file an amended complaint to cure the deficiencies 13 identified in this order. Plaintiff is advised that her complaint must clearly set for the basis of the 14 claims that she seeks to litigate in this action and the relief that she is requesting. 15 While Plaintiff only needs to set forth a short and plain statement of the claim showing 16 that the pleader is entitled to relief. . . .”, Fed. R. Civ. P. 8(a)(2), the complaint must contain 17 sufficient facts for the to draw the reasonable conclusion that the defendant is liable for the 18 misconduct alleged, Iqbal, 556 U.S. at 678. Therefore, to state a claim, the complaint must be 19 coherent enough for the Court to determine the basis of the claims and the relief that Plaintiff is 20 seeking in this action. 21 III. 22 CONCLUSION AND ORDER 23 For the reasons discussed, Plaintiff has failed to state a cognizable claim for a violation of 24 her federal rights. Plaintiff shall be granted leave to file an amended complaint to cure the 25 deficiencies identified in this order. See Lopez, 203 F.3d at 1127. 26 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but the “[f]actual 27 allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” 1 | this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 2 | 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 3 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 4 | Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff's amended 5 | complaint must be “complete in itself without reference to the prior or superseded pleading.” 6 | Local Rule 220. 7 Based on the foregoing, it is HEREBY ORDERED that: 8 1. Within thirty (30) days from the date of service of this order, Plaintiff shall file 9 an amended complaint; and 10 2. If Plaintiff fails to file an amended complaint in compliance with this order, the 11 Court will recommend to the district judge that this action be dismissed consistent 12 with the reasons stated in this order. 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _ November 15, 2019

16 UNITED STATES MAGISTRATE JUDGE

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