The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER ADOPTING, AS MODIFIED, THE JANUARY 3, 2012 FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S THIRD APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES BE DENIED AND HIS SECOND AMENDED COMPLAINT BE DISMISSED
As the parties are familiar with the facts and procedural history of this case, the Court will only provide a brief overview of the proceedings most relevant to the current issue before the Court.
On October 28, 2011, Plaintiff Joshua Medeiros, appearing pro se, filed a complaint against Defendant Social Security Administration ("SSA" or the "Administration"). (Docket No. 1.) On the same day, Plaintiff filed an Application to Proceed Without Prepayment of Fees. (Docket No. 3.) On November 7, 2011, Magistrate Judge Puglisi found that Plaintiff had not alleged facts sufficient to show that he had exhausted his administrative remedies before seeking judicial review as required by 42 U.S.C. § 405(g), the statute that governs judicial review of decisions by the SSA. (Docket No. 5 at 4.) Magistrate Judge Puglisi recommended that Plaintiff be granted leave to file an amended complaint after this Court's adoption of the Findings and Recommendation. Id. Plaintiff filed his Amended Complaint and Second Application to Proceed Without Prepayment of Fees ("Second Application") on November 15, 2011. (Docket Nos. 6, 7.)
After careful consideration, on November 17, 2011, Magistrate Judge Puglisi issued an Amended Findings and Recommendation that this Court grant Plaintiff leave to file a Second Amended Complaint, deny Plaintiff's Second Application to Proceed Without Prepayment Of Fees, and grant Plaintiff leave to file another Application if he chose to file a Second Amended Complaint. (Docket No. 9.) Subsequently, on December 6, 2011, this Court adopted Magistrate Judge Puglisi's Findings and Recommendation that Plaintiff be given leave to file a Second Amended Complaint and that his Second Application To Proceed Without Prepayment Of Fees be denied. (Docket No. 12.) Plaintiff filed his Second Amended Complaint on December 27, 2011. (Docket No. 14.) On the same day, Plaintiff filed an Application to Proceed Without Prepayment Of Fees. (Docket No. 15.)
On January 3, 2012, Magistrate Judge Puglisi issued a Findings and Recommendation that Plaintiff's Third Application to Proceed Without Prepayment of Fees be Denied and his Second Amended Complaint be Dismissed (the "1/3/2012 F&R"). (Docket No. 16.) Judge Puglisi recommended that this Court dismiss Plaintiff's Second Amended Complaint without leave to amend. Id. On January 13, 2012, Plaintiff submitted a letter request inquiring whether he may refile his complaint and indicating his intent to appeal the Court's decision. (Docket No. 17.)
On January 17, 2012, Plaintiff filed a written objection to the 1/3/2012 F&R (the "Objection"). (Docket No. 18.) Specifically, Plaintiff objected to Magistrate Puglisi's findings that Plaintiff had not exhausted his administrative remedies. Id. Plaintiff alleged that he has been ignored by the SSA, and that the SSA repeatedly lost Plaintiff's documents. Id. The Objection contained three exhibits: (1) a November 9, 2010 letter from the SSA addressed to Velva Medeiros,*fn2 informing Velva Medeiros of the reasons why the SSA declined to waive collection of overpayment of Social Security, and advising her of the 60 day time limit to ask for a hearing to contest the decision (unless she can show good reason for waiting more than 60 days); (2) Plaintiff's written request for a hearing by an Administrative Law Judge, dated November 18, 2011; and (3) a March 28, 2007 letter from the SSA informing Plaintiff of an overpayment of Supplemental Security Income money in January 2005, providing information about repaying the amount or alternatively appealing the decision. (See Docket No. 18, Exs. 1-3.)*fn3
A. Review of Magistrate Judge's Findings & Recommendation
A district court reviews de novo those portions of a magistrate judge's findings and recommendation to which an objection is made and may accept, reject, or modify, in whole or in part, the findings and recommendation made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); D. Haw. Local Rule 74.2.
The district court may accept those portions of the findings and recommendation that are not objected to if it is satisfied that there is no clear error on the face of the record. Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
The district court may receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). It may also consider the record developed before the magistrate judge. D. Haw. Local Rule 74.2. The district court must arrive at its own independent conclusions about those portions of the magistrate judge's report to which objections are made, but a de novo hearing is not required. United States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
B. Special Considerations for a Pro Se Litigant
A pro se litigant's pleadings must be read more liberally than pleadings drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). When a plaintiff proceeds pro se and technically violates a rule, the court should act with leniency toward the pro se litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986); Pembrook v. Wilson, 370 F.2d 37, 39-40 (9th Cir. 1966). However, "a pro se litigant is not excused from knowing the most ...