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Joseph W. Sullivan, Fed. Id. v. Michael J. Astrue

December 13, 2012

JOSEPH W. SULLIVAN, FED. ID.
#13526-022, PLAINTIFF,
v.
MICHAEL J. ASTRUE, DEFENDANT.



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

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

Before the court is pro se Plaintiff Joseph W. Sullivan's Complaint seeking relief against Michael J. Astrue, Commissioner of the Social Security Administration. Plaintiff is a prisoner at the Federal Detention Center, Honolulu, Hawaii, ("FDC-Honolulu") and is proceeding in forma pauperis. Plaintiff complains that Defendant breached a contract and violated his constitutional rights by suspending his Social Security retirement benefits during Plaintiff's incarceration. Plaintiff seeks reinstatement of his benefits.

Plaintiff's Complaint and action are DISMISSED for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1). Because amendment is futile, this dismissal is with prejudice and without leave to amend.

I. STATUTORY SCREENING

Federal courts must screen all cases in which prisoners are proceeding in forma pauperis or seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2), 1915A(a). The court must identify cognizable claims, and dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id.

A complaint may be dismissed for failure to state a claim if it (1) lacks a cognizable legal theory; or (2) contains insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 does not demand detailed factual allegations, however, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

If a pleading can be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127--29 (9th Cir. 2000) (en banc). "Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).

II. DISCUSSION

Plaintiff alleges that he entered into a contract with the Social Security Administration when he was eighteen years old and began contributing to Social Security. Plaintiff began receiving Social Security retirement benefits in 1998, when he turned sixty-two. Plaintiff claims that Defendant breached this contract, violated the Equal Protection and Due Process Clauses, and other non-specified constitutional rights when the Social Security Administration suspended Plaintiff's Social Security benefits on or about July 2011, when Plaintiff was incarcerated.*fn1

See 42 U.S.C. § 402(x)(1)(A)(i) (providing for the suspension of Social Security payments during any period of 30 days or more in any month while the individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to a criminal conviction).

First, Plaintiff does not indicate that he has exhausted his administrative remedies with the Social Security Administration before filing this suit. If Plaintiff has not exhausted his claims, the court lacks jurisdiction over them. See Bass v. Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (all claimants must exhaust the administrative remedies set forth in 42 U.S.C. § 405(g) to invoke the district court's jurisdiction).

Second, to the extent Plaintiff seeks damages against Social Security Administrator Astrue under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 389 (1971), those claims are foreclosed. See Schweiker v. Chilicky, 487 U.S. 412, 414, 429 (1988) (explaining that the Social Security system's elaborate administrative scheme provides a meaningful alternative remedy to Social Security claims, and holding that Bivens actions for damages are therefore "unavailable as a matter of law" for such ...


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