Fisher v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MARY J. F., Case No.: 20CV0162-KSC 12 Plaintiff, ORDER DISMISSING COMPLAINT 13 v. WITH LEAVE TO AMEND 14 ANDREW H. SAUL, Commissioner of Social Security, [15] Defendant. [17] Since this case was filed without prepayment of the filing fee, it is subject to 28 18 U.S.C. § 1915 (e)(2), which obligates the Court to dismiss the case if the Court determines [19] that the action is frivolous or malicious, or fails to state a claim on which relief may be [20] granted, or seeks monetary relief against a defendant who is immune from such relief. [21] Plaintiff’s Complaint seeks to have her Extra Help benefit reinstated by the Social [22] Security Administration. (Doc. No. 1, p. 4.) The Complaint does not allege a basis for [23] subject matter jurisdiction, although this pleading deficiency is easily curable. (Id., p. 3.) [24] In Weinberger v. Salfi, 422 U.S. 749, 760-61 , 95 S. Ct. 2457 , 45 L. Ed. 2d 522 25 (1975), the Supreme Court construed 42 U.S.C. § 405 (h) as encompassing any claim in [26] which the claimants were seeking to recover social security benefits, no matter how [27] denominated. Thus, 42 U.S.C. § 405 (g) is the exclusive means for judicial review of [28] 1 || decisions of the Commissioner of Social Security. Salfi, 422 U.S. at 757 . 42 U.S.C. § 2 ||405(g) limits district court jurisdiction in a case challenging the denial of social security 3 || benefits to reviewing the final decision of the Commissioner. A plaintiff must commence 4 || any civil action contesting the Commissioner’s final decision within sixty days from 5 || mailing of notice of the final decision or “such further time as the Commissioner of 6 || Social Security may allow.” 42 U.S.C. § 405 (g). 7 Here, it is unclear from the face of the Complaint whether plaintiff has presented 8 || her claim to the Commissioner and, if so, if she has exhausted her administrative 9 ||remedies by completing the administrative review process.' Likewise, it is unclear 10 || whether this civil action was timely initiated by plaintiff. 11 For all the foregoing reasons, the Complaint is dismissed with leave to amend. If 12 || plaintiff still desires to pursue this action, she is ORDERED to file a First Amended 13 || Complaint which corrects the pleading deficiencies cited above, on or before February 14 |/21, 2020. Plaintiff is expressly admonished that, if she does not timely file such an 15 ||amended complaint, this case may be dismissed for failure to state a claim and/or failure 16 || to prosecute. 17 IT IS SO ORDERED. 18 || Dated: January 31, 2020 4; 4 >) 19 WU YA SS 20 Hori. Karen 8S. Crawford United States Magistrate Judge [22] ! Although the exhaustion requirement is waivable by either the Commissioner or the courts, 23 see Matthews vy. Eldridge, 424 U.S. 319, 330 , 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1975); Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993), plaintiff does not allege in the Complaint that the Commissioner waived 24 oo the exhaustion of administrative remedies requirement. Moreover, this is not an appropriate case for the 25 || Court to waive the exhaustion of administrative remedies requirement because the claim plaintiff raises in this case is not: (1) collateral to a substantive claim of entitlement (collaterality), (2) colorable in its 26 || showing that denial of relief will cause irreparable harm (irreparability), and (3) one whose resolution would not serve the purposes of exhaustion (futility). Johnson v. Shalala, 2 F.3d at 921 , citing Bowen vy. 27 City of New York, 476 U.S. 467, 483-84 , 106 S. Ct. 2022 , 90 L. Ed. 2d 462 ; Briggs v. Sullivan, 886 F.2d 28 1132, 1139 (9th Cir. 1989). ty