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Nick Spagnolo v. United States Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII


November 5, 2012

NICK SPAGNOLO,
PLAINTIFF,
v.
UNITED STATES SOCIAL SECURITY ADMINISTRATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES; AND ) (2) DISMISSING COMPLAINT ) WITHOUT PREJUDICE ORDER (1) GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES; AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE

I. INTRODUCTION

On October 26, 2012, Plaintiff Nick Spagnolo ("Plaintiff"), proceeding pro se, filed a Complaint seeking damages and injunctive relief naming as Defendants the "United States Social Security Administration" (the "SSA") and its Commissioner, Michael J. Astrue (collectively, "Defendants").

Plaintiff also filed an Application to Proceed Without Prepaying Fees or Costs ("Application"). Based on the following, the court: (1) GRANTS Plaintiff's Application; and (2) DISMISSES the Complaint without prejudice.*fn1

II. ANALYSIS

A. Plaintiff's Application Is Granted

Plaintiff attests under penalty of perjury in his Application that he is unemployed with no gross pay or wages. He has no income from business, self-employment, rent, pensions, or disability payments. He states he had a take-home salary of $1,000 to $1,300 for a period between December 2009 and January 2010. He also receives Social Security benefits of $698.00 per month, and has $750 in cash or bank accounts. Because Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed in forma pauperis (i.e., without prepayment of fees), the court GRANTS Plaintiff's Application.

B. Plaintiff's Complaint Is Dismissed Without Prejudice

1. Standards of Review

The court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners").

"District courts retain broad discretion to control their dockets and '[i]n the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.'" Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam)).

Plaintiff is appearing pro se; consequently, the court liberally construes his pleadings. 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 (1982) (per curiam))).

2. Application to the Complaint's Allegations

Applying the preceding principles, the court dismisses Plaintiff's Complaint without prejudice because it is nearly identical to -- and largely seeks the same relief as -- Plaintiff's Complaint in a pending case, Spagnolo v. Astrue, Civ. No. 12-00563 LEK-BMK. See, e.g., Adams, 487 F.3d at 688 ("Plaintiffs generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'") (quoting Walton v. Eaton Corp., 563 F.2d 66, 70-71 (3d Cir. 1977)).

The Complaint (including the "supporting memorandum" included within it) generally alleges that Defendants failed to review, or otherwise denied review of, Plaintiff's multiple requests regarding a Social Security benefits "underpayment" of $3,922.68 and an allegedly improper claim by Defendants of a $324.89 "overpayment" by Plaintiff. See Doc. No. 1 at 2-4; Doc. No. 1-1 at 3. The Complaint refers to prior Complaints in this court (Civ. No. 11-00353 DAERLP, and Civ. No. 12-00314 SOM-KSC), wherein Plaintiff apparently sought judicial review of the same failures by Defendants to review his requests. Doc. No. 1 at 1. It also refers to yet another action now pending in this court wherein Plaintiff "filed a Mandamus on October 19, 2012," Doc. No. 1 at 3 (misnumbered as page one), again seeking to require Defendants to review his claims regarding the "underpayment" and "overpayment." Id. at 1. The Complaint further alleges that "the SSA has conspired to violate Plaintiff's civil rights, the SSA has stolen benefits." Id. at 4 (misnumbered as page two). This allegation apparently refers to 42 U.S.C. § 1985(3).*fn2 See id. at 1 (citing statute).

Given those allegations, the Complaint seeks "an Order for payment to Plaintiff for his back payments, yet outstanding," specifically (1) "an Order for full remittance of the 'underpayment' of $3,922.68;" (2) "a recoupment of the illegal collection of an 'overpayment' of $324.89; (3) and "a payment of $674.00 for a missing months benefits." Doc. No. 1-1 at 5. Plaintiff also "pleads the right to monies demanded previously under law, and to damages and attorney fees due to the extended delay in the prosecution of this complaint." Doc. No. 1 at 1. He states "[i]f the SSA does NOT 'satisfy' the complaint by [November 7, 2012], the Plaintiff will pursue the balance of the claim for $375,000," id. at 5 (misnumbered as page 3), although there is no explanation for the $375,000 figure.

As Plaintiff alludes to, he has a nearly identical "mandamus" action already pending in this court essentially seeking the same relief -- benefits for an "underpayment" of $3,922.68, an "overpayment" of $324.89, and a "missing benefit" of $674 -- that he seeks in this action. See Spagnolo v. Astrue, Civ. No. 12-00563 LEK-BMK (filed October 19, 2012; Order Granting Application to Proceed Without Payment of Fees granted on October 25, 2012). That action --also naming the SSA and its Commissioner Michael Astrue -- also seeks a review of the SSA's allegedly wrongful refusal to review his requests for benefits, and seeks "an Order for payment to Plaintiff for his back payments, yet outstanding," specifically (1) "an Order for full remittance of the 'underpayment' of $3,922.68;" (2) "a recoupment of the illegal collection of an 'overpayment' of $324.89;" (3) and "[p]ayment of a $674.00 missing months benefits[.]" Doc. No. 1 at 11 (Civ. No. 12-00563). Indeed, many of the pages in the two actions are identical.*fn3

Thus, the relief Plaintiff seeks in this action stems from the same factual situation -- an allegedly wrongful failure to review his claims and to pay benefits -- that is pending in Plaintiff's "mandamus" action.*fn4 It is well-settled, however, that a plaintiff has "no right to have multiple in forma pauperis actions pending arising out of the same nucleus of facts." Bryan v. Campbell, 2010 WL 4641683, at *1 (D. Or. Nov. 4, 2010) (citing Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) ("There is no abuse of discretion where a district court dismisses under § 1915([e]) a complaint 'that merely repeats pending or previously litigated claims.'") (citations omitted)). See also Rivera v. Carpenter, 2010 WL 3025148, at *1 (D. Haw. Aug. 3, 2010) ("Parties generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'") (quoting Matubang v. City & Cnty. of Honolulu, 2010 WL 2176108, at *2 (D. Haw. May 27, 2010) (other citations omitted)). "Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e)." Bryan, 2010 WL 4641683, at *1 (citations omitted).

"A court facing duplicative actions may: (1) stay the second action;

(2) dismiss the second action without prejudice; (3) enjoin the parties from proceeding with the second action; or (4) consolidate the two actions." Rivera, 2010 WL 3025148, at *1 (quotation marks and citations omitted). "The complex problems that can arise from multiple federal filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when exercising its discretion." Matubang, 2010 WL 2176108, at *3 (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)).

Here, it cannot be disputed that this action is duplicative of Plaintiff's pending action in Civ. No. 12-00563 LEK-BMK. It seeks essentially the same relief against the same Defendants for the same alleged wrongs. See, e.g., Adams, 487 F.3d at 689 ("[I]n assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same."); see also Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (stating that a suit is duplicative of another "if the claims, parties, and available relief do not significantly differ between the two actions").

Accordingly, the court exercises its discretion and DISMISSES this action without prejudice. See Rivera, 2010 WL 3025148, at *1. If Plaintiff is entitled to any relief sought in this action, he may seek it, if at all, by litigating his claims in Civ. No. 12-00563 LEK-BMK. For this reason, this dismissal is without leave to amend.

III. CONCLUSION

For the reasons stated above, the court GRANTS Plaintiff's Application, and DISMISSES the Complaint without prejudice. The Clerk of Court shall enter Judgment and close the case file.

IT IS SO ORDERED.

J. Michael Seabright

Spagnolo v. U.S. Social Sec. Admin., et al.,Civ. No. 12-00579 JMS/KSC, Order: (1) Granting Plaintiff's Application to Proceed Without Prepayment of Fees; and (2) Dismissing Complaint without Prejudice


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