Michael Louis Overton v. Social Security Administration et al
Filing
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ORDER TO SHOW CAUSE RE DISMISSAL by Magistrate Judge Victor B. Kenton. Accordingly, within 20 days of the date of this Order, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this case should not be dismissed. Response to Order to Show Cause due by 9/16/2013. (gr)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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MICHAEL LOUIS OVERTON,
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Plaintiff,
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v.
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SOCIAL SECURITY ADMINISTRATION, )
et al.,
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Defendants.
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No. CV 13-05646-R (VBK)
ORDER TO SHOW CAUSE RE DISMISSAL
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On July 23, 2013, Michael Louis Overton (hereinafter referred to
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as “Plaintiff”) filed a “Notice of Motion and Motion to Recover
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Entitled
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(“Complaint”)
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Administration Head; Veterans Administration Head Official; and West
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Point Military Academy in the United States District Court for the
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Northern District of California.
Benefits
Under
against
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U.S.C.
Defendants
4207
United
and
States
42
U.S.C.
Social
1997"
Security
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On July 30, 2013, an Order of Transfer was issued by United
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States District Judge William Alsup transferring this action to the
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United States District Court for the Central District of California.
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On August 16, 2013, an Order re Leave to File Action Without
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Prepayment of Full Filing Fee was issued, and Plaintiff’s Complaint
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was filed in United States District Court for the Central District of
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California.
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disbursements from his prison trust account to pay the filing fee;
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failed to provide a certified copy of trust fund statement for the
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last six months and made an inadequate showing of indigency. (Docket
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No. 7.)
It was noted that Plaintiff had failed to authorize
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ALLEGATIONS IN PLAINTIFF’S COMPLAINT
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Plaintiff, a state prisoner incarcerated at the California Men’s
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Colony-East, alleges that he is an attorney licensed by the California
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State Bar and has a paralegal degree from Hastings School of Law.
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(Complaint at 3.)
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vested interest and entitlement to receive Social Security benefits
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“‘on
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“deceased brother’s-survivor’s benefits” as of June 1997. (Id. at 3-
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4.) In Claim Two, Plaintiff alleges that the United States Air Force,
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Veterans Administration and Military Induction Center violated a
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breach of trust in fraudulently attempting to locate Lieutenant Major
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Mike Overton who was in prison during the time in question. (Id. at
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5.)
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behalf’
of
In Claim One, Plaintiff contends that he has a
[his]
wife”
and
an
additional
interest
in
his
In Claim Three, Plaintiff states that he was inducted into West
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Point Academy during the 1973 Vietnam conflict.
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commissioned on his first tour to Hanoi and a second tour in Saigon.
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(Id. at 5.)
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Major; however, he was diagnosed with a heart murmur and given an
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honorable discharge.
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//
Plaintiff was
Plaintiff alleges his induction rank was Lieutenant
Plaintiff seeks an award of benefits. (Id.)
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STANDARD OF REVIEW
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Because Plaintiff is seeking to proceed In Forma Pauperis, the
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Court shall review such a complaint “as soon as practicable after
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docketing.”
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required to dismiss a complaint if the Court finds that the complaint
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(1) is legally frivolous or malicious, (2) fails to state a claim upon
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which relief may be granted, or (3) seeks monetary relief from a
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defendant immune from such relief.
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in forma pauperis complaints).
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Pursuant to 28 U.S.C. §1915(e)(2), the district court is
28 U.S.C. §1915(e)(2)(B) (re: all
A complaint may also be dismissed for lack of subject matter
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jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).
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Williams, 490 U.S. 319, 327 n. 6 (1989) (unanimous decision) (patently
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insubstantial complaint may be dismissed under Rule 12(b)(1) for lack
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of subject matter jurisdiction. “Whenever it appears by suggestion of
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the parties or otherwise that the court lacks jurisdiction of the
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subject matter, the court shall dismiss the action.”
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12(h)(3) (emphasis added).
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jurisdiction can be raised at any time, including sua sponte by the
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Court.
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Cir. 1988).
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proper where the federal claim is “so insubstantial, implausible,
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foreclosed by prior decisions of this Court, or otherwise completely
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devoid of merit as not to involve a federal controversy.”
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v. Citizens for a Better Env’t., 523 U.S. 83, 89 (1998). (Citations
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and internal quotations omitted.)
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//
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//
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//
Neitzke v.
Fed. R. Civ. P.
A challenge to the Court’s subject matter
Emrich v. Touche Ross and Co., 846 F.2d 1190, 1194 n. 2. (9th
Dismissal for lack of subject matter jurisdiction is
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Steel Co.
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DISCUSSION
For all of the following reasons, Plaintiff’s Complaint should be
dismissed without leave to amend.
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A.
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Plaintiff seeks to recover benefits against Defendants pursuant
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to 28 U.S.C. § 4207 and 42 U.S.C. § 1997 and alleges jurisdiction
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pursuant to these sections of the United States Code.
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U.S.C. § 4207 does not exist in the United States Code.
Plaintiff Has Failed to State a Claim Against Defendants.
However, 28
Further,
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while 42 U.S.C. § 1997 defines the term “institution” to encompass any
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facility, including a jail, it does not establish subject matter
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jurisdiction.
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Plaintiff’s allegations and the nature of his claims are unclear
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and Plaintiff fails to identify the specific theories upon which the
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asserted claims against the Defendants are based.
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Plaintiff
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violation of a federal statute against Defendants that would confer
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jurisdiction upon this Court.
has
failed
to
state
a
constitutional
Accordingly,
violation
or
a
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B.
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A United States Agency Cannot Be Sued Unless There Is a
Waiver of Sovereign Immunity.
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A United States officer cannot be sued in his official capacity
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nor a United States agency be sued, unless there is a waiver of
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sovereign immunity. Any waiver of sovereign immunity must be express.
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Doe v. Attorney General of United States, 941 F.2d 780, 788 (9th Cir.
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1991).
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damages against federal actors in their official capacities.
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e.g., Thomas Lazear v. Federal Bureau of Investigation, 851 F.2d 1202,
The doctrine of sovereign immunity bars claims for monetary
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See,
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1207 (9th Cir. 1988)(“The United States has not waived its sovereign
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immunity in actions seeking damages for constitutional violations”).
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This Court lacks subject matter jurisdiction to consider a
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constitutional damage claim against the United States, because the
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United States has not waived sovereign immunity with respect to such
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claims.
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Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991); Clemente
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v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985), cert. denied,
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474 U.S. 1101 (1986); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th
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Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995);
Cir. 1985).
Sovereign immunity also extends to the agencies of the federal
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government.
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471, 486 (1993)(holding that a Bivens claim cannot be brought against
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a federal agency); Daly-Murphy v. Winston, 837 F.2d 348, 356 (9th Cir.
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1987)(same).
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See Federal Deposit Insurance Corp. v. Meyer, 510 U.S.
“[A] person attempting to sue a federal agency or officer must
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demonstrate
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authorization to sue the United States, or that in effect [the
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complaint] is not a suit against the United States.
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fundamental subject matter jurisdictional requirement.”
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Miller and Cooper, Federal Practice and Procedure, Jur. 3d §3655
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(1998).
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Attorney General of the United States, 941 F.2d 780, 788 (9th Cir.
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1991). It is clear that this Court has no subject matter jurisdiction
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over money damage claims against official actors brought pursuant to
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Bivens.
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1987).
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Court lacks the power to hear Plaintiff’s claims against Defendants.
that
the
claim
is
covered
by
specific
statutory
This is a
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Any waiver of sovereign immunity must be express.
Doe v.
See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.
Therefore, due to the doctrine of sovereign immunity, this
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Plaintiff can obtain damages against the Defendants under only
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one of two theories: a claim under the Federal Tort Claims Act, 28
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U.S.C. §§1346, 2671-2680; or an implied cause of action under the
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principles of Bivens v. Six Unknown Agents, 403 U.S. 388 (1977).
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In order to file a claim under the Federal Tort Claims Act,
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Plaintiff must have exhausted his administrative remedies.
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United States, 96 F.3d 446, 447 (9th Cir. 1996).
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U.S.C. §2675(a) provides in part:
Graham v.
Specifically, 28
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“An action shall not be instituted upon a claim against
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the United States for money damages for injury or loss of
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property or personal injury or death caused by the negligent
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or
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Government while acting within the scope of his office or
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employment, unless the claimant shall have first presented
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the claim to the appropriate federal agency and his claim
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shall have been finally denied by the agency in writing and
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sent by certified or registered mail.
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agency to make final disposition of a claim within six
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months after it is filed, at the option of the claimant any
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time thereafter, be deemed a final denial of the claim for
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purposes of this section...”
wrongful
act
or
omission
of
any
employee
of
the
The failure of an
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A federal court may not exercise subject matter jurisdiction over
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a claim under the Federal Tort Claims Act until administrative
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remedies have been exhausted.
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States, 508 U.S. 106, 112-13 (1993). There is no indication anywhere
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that plaintiff exhausted any administrative remedies. This Court may
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dismiss the Complaint for failure to allege this jurisdictional
28 U.S.C. §2675(a); McNeil v. United
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prerequisite.
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(9th Cir. 1982).
See Hutchinson v. United States, 677 F.2d 1322, 1327
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ORDER
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Accordingly, within 20 days of the date of this Order, Plaintiff
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is ORDERED TO SHOW CAUSE, in writing, why this case should not be
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dismissed.
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DATED: August 27, 2013
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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