Zaldivar v. San Francisco Social Security Administration Director of SF, Ca 94102

Northern District of California, cand-4:2015-cv-03241

ORDER OF DISMISSAL WITHOUT PREJUDICE. Signed by Magistrate Judge Donna M. Ryu on 1/20/16.

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 ANDREW ZALDIVAR, 10 Case No. 15-cv-03241-DMR (PR) Plaintiff, 11 ORDER OF DISMISSAL v. WITHOUT PREJUDICE 12 Northern District of California United States District Court DIRECTOR OF THE SOCIAL SECURITY 13 ADMINISTRATION, 14 Defendant. 15 Plaintiff Andrew Zaldivar, who is currently in custody at the San Francisco County Jail in 16 San Bruno, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against the Director 17 of the Social Security Administration in San Francisco. Plaintiff claims that he had applied for 18 Supplemental Security Income ("SSI") benefits, and that his application was "approved." Dkt. 1 19 at 3. He alleges that he was "entitled to approx. $1000.00 dollars a month, medicare, and 20 retroactive pay." Id. He claims that he "received the first month direct express money card but 21 due to deliberate malice directed towards [him] by SSI staff [he] failed to retrieve [his] series [of] 22 administered direct payments and reissued money cards that were deliberately administered to 23 other individuals to harm [him] financially, spiritually, physically [and] mentaly [sic]." Id. 24 Plaintiff seeks monetary damages and injunctive relief. Id. 25 Plaintiff has consented to magistrate judge jurisdiction, id. at 4, and this matter has been 26 assigned to the undersigned Magistrate Judge. 27 Plaintiff has previously been granted leave to proceed in forma pauperis. Dkt. 5. 28 1 Because Plaintiff is proceeding in forma pauperis, the court shall review such a complaint 2 pursuant to 28 U.S.C. § 1915(e)(2). The court is required to dismiss a complaint if it finds that the 3 complaint (1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be 4 granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. 5 § 1915(e)(2)(B) (regarding all in forma pauperis complaints). 6 As mentioned above, Plaintiff has consented to magistrate judge jurisdiction. A magistrate 7 judge generally must obtain the consent of the parties to enter dispositive rulings and judgments in 8 a civil case. See 28 U.S.C. § 636(c)(1). However, in cases such as this one, where the plaintiff 9 has consented but the defendant has not been served, "all parties have consented pursuant to 28 10 U.S.C. § 636(c)(1)," and a magistrate judge therefore "'may conduct any or all proceedings in a 11 jury or nonjury civil matter and order the entry of judgment in the case.'" Gaddy v. McDonald, 12 No. CV 11-08271 SS, 2011 WL 5515505, at *1 n.2 (C.D. Cal. Nov. 9, 2011) (quoting § 636(c)(1)) Northern District of California United States District Court 13 (citing United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1995)); Third World Media, 14 LLC v. Doe, No. C 10-04470 LB, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011)); cf. Neals 15 v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to 16 dismiss action as frivolous without consent of defendants because defendants had not yet been 17 served and therefore were not parties). 18 In his complaint, Plaintiff concedes that he has failed to exhaust his administrative 19 remedies as to his claim. Dkt. 1 at 2. If Plaintiff wants to challenge a decision by the Social 20 Security Administration involving his SSI benefits, he may do so, but first must receive a "final 21 decision" and then exhaust administrative remedies with the Social Security Administration. See 22 42 U.S.C. § 405(g) ("Any individual, after any final decision of the Commissioner of Social 23 Security made after a hearing to which he was a party, irrespective of the amount in controversy, 24 may obtain a review of such decision by a civil action commenced within sixty days after the 25 mailing to him of notice of such decision or within such further time as the Commissioner of 26 Social Security may allow"). The regulations implementing the Social Security Act provide for a 27 four step administrative review process. 20 C.F.R. § 416.1400(a). These steps are (1) an initial 28 determination about eligibility; (2) reconsideration of the initial determination; (3) a hearing 2 1 before an administrative law judge; and (4) review by the Social Security Appeals Council. Id. It 2 is only after completing all of these steps that the Commissioner's decision is "final" and the 3 individual may seek judicial review of that decision. Plaintiff claims he has completed the first 4 step and received a determination about his eligibility. Dkt. 1 at 3. However, he admits that he 5 has not completed any of the remaining three aforementioned steps. Id. at 2. As such, Plaintiff's 6 complaint fails to state a claim upon which relief may be granted. 7 For the foregoing reasons, this action is DISMISSED for failure to state a claim upon 8 which relief may be granted.1 In light of the dismissal, all pending motions are denied as moot, 9 including Plaintiff's motions entitled "Motion To Give Extra Time Also for Summary Judgement 10 [sic]" and "Motion to Satisfy Owed Payments and Punitive Damages." Dkts. 7, 8. 11 CONCLUSION 12 For the reasons outlined above, this action is DISMISSED for failure to state a claim upon Northern District of California United States District Court 13 which relief may be granted. The dismissal is without prejudice to Plaintiff refiling after he has 14 completed the aforementioned steps in the administrative process provided by the regulations 15 implementing the Social Security Act. See 20 C.F.R. § 416.1400(a). 16 The Clerk of the Court shall enter judgment, terminate all pending motions as moot (dkts. 17 7, 8), and close the file. 18 This Order terminates Docket Nos. 7 and 8. 19 IT IS SO ORDERED. 20 Dated: January 20, 2016 21 ______________________________________ DONNA M. RYU 22 United States Magistrate Judge 23 24 25 26 27 1 As mentioned above, the undersigned Magistrate Judge has jurisdiction to dismiss this action 28 even though Defendant has not been served or consented to magistrate jurisdiction. See Neals, 59 F.3d at 532. 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ANDREW ZALDIVAR, 4 Case No. 4:15-cv-03241-DMR Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 SAN FRANCISCO SOCIAL SECURITY 7 ADMINISTRATION DIRECTOR OF SF, CA 94102, 8 Defendant. 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 11 District Court, Northern District of California. 12 Northern District of California That on January 20, 2016, I SERVED a true and correct copy(ies) of the Order of United States District Court 13 Dismissal Without Prejudice, by placing said copy(ies) in a postage paid envelope addressed to the 14 person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said 15 copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 Andrew Zaldivar ID: 475077 County Jail #5 18 Housing 2B-22 lower P.O. Box 67 19 San Bruno, CA 94066 20 Dated: January 20, 2016 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 26 By:________________________ Ivy Lerma Garcia, Deputy Clerk to the 27 Honorable DONNA M. RYU 28 4