Opinion
1:22-cv-0972 JLT EPG
04-06-2023
DECHERI HAFER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, et al., Defendants.
ORDER ADOPTING IN PART THE FINDINGS AND RECOMMENDATIONS, GRANTING THE COMMISSIONER OF SOCIAL SECURITY'S MOTION TO DISMISS, AND DIRECTING THE CLERK OF COURT TO CLOSE THIS CASE
(DOCS. 25, 30)
DeCheri Hafer proceeds pro se and in forma pauperis in this action against the Social Security Administration, Commissioner of Social Security, and the United States. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
The Commissioner of Social Security filed a motion to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that Plaintiff's complaint fails to assert subject matter jurisdiction and fails to state a claim. (Doc. 25.) The magistrate judge found Plaintiff failed to fully exhaust her administrative remedies related to her claims for benefits under Title II and Title XVI of the Social Security Act. (Id. at 14.) The magistrate judge recommended the Commissioner's motion be granted and Plaintiff's claims against the Commissioner be dismissed for lack of subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies. (Id.) Furthermore, the magistrate judge recommended that Plaintiff's claims against the Commissioner be dismissed without prejudice as to Plaintiff fully exhausting her administrative remedies with regards to her Title II and Title XVI disability benefits. (Id.) To the extent Plaintiff asserts tort and violations of federal law against the Commissioner, the magistrate judge also recommended such claims be dismissed with prejudice, for lack of subject matter jurisdiction, and without leave to amend. (Id.)
The magistrate judge also screened the remainder of Plaintiff's claims against the Social Security Administration and the United States and found that Plaintiff's complaint failed to state a cognizable claim against the Social Security Administration and the United States. (Doc. 30 at 2.) Further, the magistrate judge recommended that Plaintiff's claims against the Social Security Administration and the United States be dismissed with prejudice and without leave to amend due to lack of subject matter jurisdiction. (Id. at 14.)
The Findings and Recommendations were served upon Plaintiff at the address on record. It notified him that any objections were to be filed within 14 days. (Doc. 25 at 15.) However, the Findings and Recommendations-like all other mail from the Court since December 27, 2022-was returned as undeliverable. No objections have been filed.
Pursuant to Local Rule 183(b), all parties appearing in propria persona shall keep the Court apprised of their current address. When, here, mail is returned to the Court by the U.S. Postal Service and the plaintiff fails to notify the Court of an address change within 63 days of the return, “the Court may dismiss the action without prejudice for failure to prosecute.” LR 183(b). Thus, the Court finds dismissal without prejudice is also appropriate due to Plaintiff's failure to comply with the Local Rules. See, Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for failure to comply with local rule); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address).
Pursuant to 28 U.S.C. § 636 (b)(1)(C), this Court conducted a de novo review of the case. Having carefully reviewed the entire matter, the Court concludes the Findings and Recommendations are supported by the record and by proper analysis concerning the Plaintiff's claims and the lack of subject matter jurisdiction. However, where the Court lacks subject matter jurisdiction, dismissal shall be made without prejudice. See Dichter-Mad Family Partners, LLP v. United States, 709 F.3d 749, 791 (9th Cir. 2013) (“dismissal for lack of subject matter jurisdiction is ordinarily without prejudice”); Hampton v. Pac. Inv. Mgmt. Co., 869 F.3d 844, 846 (9th Cir. 2017) (“[d]ismissals for lack of subject-matter jurisdiction ... must be without prejudice, because a lack of jurisdiction deprives the dismissing court of any power to adjudicate the merits of the case”). Accordingly, the claims against the Social Security Administration and the United States will be dismissed without prejudice for lack of subject matter jurisdiction, rather than the recommended dismissal with prejudice. See Dichter-Mad Family Partners, 709 F.3d at 791; Hampton, 869 F.3d at 846. Based upon the foregoing, the Court ORDERS:
1. The Findings and Recommendations dated March 6, 2023 (Doc. 30) are ADOPTED IN PART.
2. The Commissioner of Social Security's motion to dismiss (Doc. 25) is GRANTED as follows:
a. Plaintiff's claims against the Commissioner related to Plaintiff's Title II and Title XVI disability benefits are DISMISSED WITHOUT PREJUDICE as to Plaintiff fully exhausting her administrative remedies.
b. To the extent Plaintiff's asserts claims based in tort and violations of federal law against the Commissioner, these claims are DISMISSED WITHOUT PREJUDICE due to lack of subject matter jurisdiction.
3. Plaintiff's claims against the Social Security Administration and the United States are DISMISSED WITHOUT PREJUDICE due to lack of subject matter jurisdiction.
4. The Clerk of Court is directed to close this action.
IT IS SO ORDERED.