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Infinity v. Jo Ellen Felice

March 27, 2013



This action is before the undersigned pursuant to the consent of the parties. See 28 U.S.C. § 636(c); E.D. Cal. L.R. 305. Defendant moves to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule) 12(b)(1) for lack of jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim.*fn1 Dckt. No. 28. Plaintiff opposes the motion. Dckt. Nos. 31, 35. For the reasons stated herein, the court grants defendant's motion and dismisses the complaint without leave to amend.


Plaintiff's first amended complaint challenges the alleged failure by defendant to issue him a Social Security card after he legally changed his name in 1977. First Am. Compl., Dckt. No. 22, at 3-4; see also Dckt. No. 27 at 4 (order limiting plaintiff's first amended complaint to that claim). Plaintiff seeks a declaration of his rights and the duty owed to him by defendant pursuant to 28 U.S.C. §§ 1361 and/or 2201. Id.; see also 28 U.S.C. § 1361 ("The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.");

28 U.S.C. § 2201(a) ("In a case of actual controversy within its jurisdiction, . . . , any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. "); Infinity v. Social Sec. Admin., 2010 WL 2889110 (D. Md. July 21, 2010).


Defendant moves to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction, arguing that plaintiff lacks standing since he has not applied for a replacement Social Security card in accordance with the Social Security procedures. Dckt. No. 28-1 at 14-16. Defendant also moves to dismiss under Rule 12(b)(6), arguing that plaintiff's claim is barred by res judicata. Id. at 16-19.

A. Legal Standards Under Rule 12(b)(1) "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).

A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).

B. Legal Standards Under Rule 12(b)(6)

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256, (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

C. Pro Se Standards

The court is mindful of plaintiff's pro se status. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985), that liberal interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

D. Discussion 1. Lack of Standing/Jurisdiction

Defendant contends that plaintiff lacks standing, and this court lacks jurisdiction, because plaintiff has not applied for a replacement Social Security card in accordance with Social Security procedures and therefore has not suffered any injury in fact. Dckt. No. 28-1 at 7.

If a plaintiff has no standing, the court has no subject matter jurisdiction. Nat'l Wildlife Fed'n v. Adams, 629 F.2d 587, 593 n.11 (9th Cir. 1980) ("[B]efore reaching a decision on the merits, we [are required to] address the standing issue to determine if we have jurisdiction.").

There are three requirements that must be met for a plaintiff to have standing: (1) the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is both concrete and particularized and actual or imminent; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 847 (9th Cir. 2001) (en banc).

According to defendant, although "Social Security regulations and program operations require that individuals requesting a replacement card to formally apply for one by submitting a completed SS-5 form and the requisite proof of identity documentation to the [Social Security Administration ("SSA")]," plaintiff does not allege that he has applied for a replacement Social Security card. Id. at 15 (citing Crowell Decl. ¶ 9; 20 C.F.R. § 422.103; SSA's Program Operations Manual System (POMS) § RM 10205.001 at ¶ A). Defendant contends that the SSA "has not denied [plaintiff] a replacement card because he has not submitted an application that could be subject to denial since he was issued a replacement card on May 24, 1977." Id. at 15 (citing Crowell Decl. ¶ 10). According to defendant, because "plaintiff's injury is contingent upon (1) his submission of an SS-5 form to SSA in application for a replacement card, and (2) SSA's denial of his application," and it is possible that neither of those events will occur, plaintiff's claim is not ripe for adjudication. Id. at 16. Defendant contends that although the SSA twice directed plaintiff to contact the SSA field office in Blythe, California, and provided him with the address and phone number, as well as an SS-5 form, plaintiff has not submitted an application to SSA. Id. (citing Def.'s Ex. D at ¶ 2, Ex. E at ¶ 3, Crowell Decl. ¶ 10).

In response, plaintiff does not argue that he has submitted an application since 1977*fn2 ; rather, he contends that he did not receive the Social Security card that defendant allegedly sent to him in 1977.*fn3 Dckt. No. 31 at 2-4; First Am. Compl. at 3. Therefore, although plaintiff might lack standing to challenge defendant's failure to send plaintiff a replacement card since 1977 when he last requested one, that argument misses the point of what appears to be plaintiff's actual claim: that defendant failed to actually send that replacement card in 1977. Id. Defendant does not dispute that plaintiff requested a replacement card in 1977; defendant contends only that plaintiff has not requested one "since he was issued a replacement card on May 24, 1977." Dckt. No. 28-1 at 15 (citing Crowell Decl. ¶ 10). Although defendant contends that plaintiff was issued a replacement card on May 24, 1977, and that agency procedure would have been to mail the card to plaintiff and "[t]here is nothing in [defendant's] records to reflect that that procedure was not followed with plaintiff in 1977," Crowell Decl. ¶¶ 6-7, plaintiff specifically contends under penalty of perjury that he was never issued and never received a replacement card. Dckt. No. 31 at 2, 4; see also Dckt. No. 35 at 2 (stating that his request for a replacement card in 1977 "was ignored"). Since plaintiff is still without the card that he has attempted to obtain since 1977, and he alleges that all of his efforts to communicate with SSA to obtain a card have been frustrated, the court cannot say that plaintiff lacks an injury in fact and therefore lacks standing regarding an alleged failure by defendant to provide plaintiff with a replacement Social Security card in 1977.*fn4

2. Res Judicata

Nonetheless, defendant also moves to dismiss under Rule 12(b)(6), arguing that plaintiff's claim is barred by res judicata based on an actions plaintiff previously filed in the District of Maryland. Id. at 16-19. Specifically, defendant contends that on November 20, 2009, plaintiff filed in the United States District Court for the District of Maryland a petition for writ of mandamus and request for legal change of his name to be recognized by defendant. Def.'s Req. for Jud. Notice, Ex. F (Petition for Writ of Mandamus in Infinity v. Soc. Security Admin., No. 1:09-cv-3130-RDB (D. Md.)). Therein, plaintiff "complain[ed] that the [SSA] had not been responsive to his requests to recognize the name change and issue a replacement Social Security card with 'only a one word/single name "Infinity" on it.'" Def.'s Req. for Judicial Notice, Ex. G, Dckt. No. 28-4 at 2 (Memorandum Opinion, Infinity v. Social Security Admin., Case No. 1:09-cv-03130-RDB (D. Md. July 21, 2010)). Plaintiff's petition was dismissed after the court found that there was "no dispute that Respondent has provided Petitioner substantial relief by changing the name of his SSA records to 'Infinity' and issuing a SSA card to him with his Social Security Number and the name Infinity."*fn5 Id. at 5. The court further found that plaintiff "had failed to show he has the clear and undisputable right under the First Amendment or any other constitutional or statutory provisions to have a card issued 'with a name complete in its singularity' without following the SSA requirements . . . ." Id.

Plaintiff also filed three other cases in the District of Maryland relating to defendant's response to his name change request, all of which were dismissed for failure "to set out a colorable civil rights claim": Infinity v. Social Security Admin's Computer System, Case No. 1:10-cv-966-RDB (D. Md.); Infinity v. Sheryl Ziporkin, Assoc. Commissioner, Case No. 1:10-cv-1565-RDB (D. Md.); and Infinity v. Social Security Admin's Computer System, Case No. 1:10-cv-1566-RDB (D. Md.). Def.'s Req. for Judicial Notice, Ex. I, Dckt. No. 28-4 at 9-11 (Order filed July 22, 2010). In dismissing all three cases, the court stated that plaintiff's petition for mandamus relief "was denied due to Plaintiff's failure to show the violation of a constitutional right to have a sole, one-word name on his Social Security card and the undersigned independently finds no constitutional or statutory violation associated with the SSA's processing of Plaintiff's request."*fn6 Id.

Plaintiff does not respond to defendant's claim that this action is barred by res judicata. See generally Dckt. Nos. 31, 35.

Under res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Brown v. Felsen, 442 U.S. 127, 131 (1979) (superseded by statute on other grounds) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 (1940); 1B James W. Moore, et al., Moore's Federal Practice ¶ 0.405[1] (2d ed. 1974). "Res judicata is applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties." Tahoe--Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n. 3 (9th Cir. 2002)).

a. Identity of Claims "Identity of claims exists when two suits arise from 'the same transactional nucleus of facts.'" Id. at 1078 (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). "The fact that res judicata depends on an 'identity of claims' does not mean that an imaginative attorney may avoid preclusion by attaching a different legal label to an issue that has, or could have, been litigated." Id. at 1077-78. "Newly articulated claims based on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been brought in the earlier action." Id. It is immaterial whether the claims asserted subsequent to the judgment were actually pursued in the action that led to the judgment; rather, the relevant inquiry is whether they could have been brought. C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987).

Here, although plaintiff's claims in the four other District of Maryland actions were focused more specifically on defendant's alleged failure to provide him with a replacement card with "only a one word/single name 'Infinity' on it," plaintiff's present claim that he did not receive the replacement card that he requested in 1977 arises out of the same "transactional nucleus of facts" as plaintiff's previous claims, Tahoe--Sierra Pres. Council, Inc., 322 F.3d at 1077, and could have been brought in any of those previous actions, C.D. Anderson, 832 F.2d at 1100. In fact, in the initial action, Infinity v. Soc. Security Admin., No. 1:09-cv-3130-RDB (D. Md.), the district judge specifically found that there was no dispute that defendant issued a replacement Social Security card to plaintiff in 1977 with the name "Infinity." Def.'s Req. for Judicial Notice, Ex. G, Dckt. No. 28-4 at 5. Moreover, the ancillary claim plaintiff mentions in his opposition herein -- that even if defendant had sent him a replacement card in 1977, the card would have been wrong anyway since the name on allegedly contained on it ("Unknown, Infinity") was incorrect and defendant therefore had an obligation to send him a corrected card -- is identical to the claims raised in plaintiff's District of Maryland action. Therefore, plaintiff's prior and current claims satisfy the identity of claims requirement.

b. Final Judgment on the Merits

Res judicata also requires a final judgment on the merits. "The phrase 'final judgment on the merits' is often used interchangeably with 'dismissal with prejudice.'" Stewart, 297 F.3d at 956. Although the orders dismissing plaintiff's prior actions in the District of Maryland do not expressly state whether the dismissals were with or without prejudice, each constituted a final judgments on the merits. Rule 41(b) specifies that "[u]nless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits." See Fed. R. Civ. P. 41(b) (emphasis added); see also In re Schimmels, 127 F.3d 875, 884 (9th Cir. 1997) ("[I]nvoluntary dismissal generally acts as a judgment on the merits for the purposes of res judicata, regardless of whether the dismissal results from procedural error or from the court's considered examination of the plaintiff's substantive claims.").

c. Privity of Parties

There is also privity between parties here. In the present action and each of plaintiff's District of Maryland actions, he sued the SSA or an employee or entity thereof. Thus, the identity/privity of parties requirement is satisfied. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) ("There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.").

Therefore, plaintiff's current action is barred by the doctrine of res judicata. As amendment would be futile, plaintiff's complaint must be dismissed without leave to amend. Dumas v. Kipp, 90 F.3d 386, 389 (9th Cir. 1996) (holding dismissal without leave to amend is appropriate where further amendment would be futile).


Accordingly, IT IS HEREBY ORDERED that: .

1. Defendant's motion to dismiss, Dckt. No. 28, is granted and plaintiff's complaint is dismissed without leave to amend;

2. The Clerk of Court is directed to close this case.*fn7

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