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Overton v. Social Security Administration

United States District Court, Ninth Circuit

August 27, 2013

MICHAEL LOUIS OVERTON, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, et al., Defendants.

ORDER TO SHOW CAUSE RE DISMISSAL

VICTOR B. KENTON, Magistrate Judge.

On July 23, 2013, Michael Louis Overton (hereinafter referred to as "Plaintiff") filed a "Notice of Motion and Motion to Recover Entitled Benefits Under 28 U.S.C. 4207 and 42 U.S.C. 1997" ("Complaint") against Defendants United States Social Security Administration Head; Veterans Administration Head Official; and West Point Military Academy in the United States District Court for the Northern District of California.

On July 30, 2013, an Order of Transfer was issued by United States District Judge William Alsup transferring this action to the United States District Court for the Central District of California.

On August 16, 2013, an Order re Leave to File Action Without Prepayment of Full Filing Fee was issued, and Plaintiff's Complaint was filed in United States District Court for the Central District of California. It was noted that Plaintiff had failed to authorize disbursements from his prison trust account to pay the filing fee; failed to provide a certified copy of trust fund statement for the last six months and made an inadequate showing of indigency. (Docket No. 7.)

ALLEGATIONS IN PLAINTIFF'S COMPLAINT

Plaintiff, a state prisoner incarcerated at the California Men's Colony-East, alleges that he is an attorney licensed by the California State Bar and has a paralegal degree from Hastings School of Law. (Complaint at 3.) In Claim One, Plaintiff contends that he has a vested interest and entitlement to receive Social Security benefits "on behalf' of [his] wife" and an additional interest in his "deceased brother's-survivor's benefits" as of June 1997. (Id. at 3-4.) In Claim Two, Plaintiff alleges that the United States Air Force, Veterans Administration and Military Induction Center violated a breach of trust in fraudulently attempting to locate Lieutenant Major Mike Overton who was in prison during the time in question. (Id. at 5.)

In Claim Three, Plaintiff states that he was inducted into West Point Academy during the 1973 Vietnam conflict. Plaintiff was commissioned on his first tour to Hanoi and a second tour in Saigon. (Id. at 5.) Plaintiff alleges his induction rank was Lieutenant Major; however, he was diagnosed with a heart murmur and given an honorable discharge. Plaintiff seeks an award of benefits. (Id.)

STANDARD OF REVIEW

Because Plaintiff is seeking to proceed In Forma Pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. § 1915(e)(2), the district court is required to dismiss a complaint if the Court finds that the complaint (1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (re: all in forma pauperis complaints).

A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). Neitzke v. Williams , 490 U.S. 319, 327 n. 6 (1989) (unanimous decision) (patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3) (emphasis added). A challenge to the Court's subject matter jurisdiction can be raised at any time, including sua sponte by the Court. Emrich v. Touche Ross and Co. , 846 F.2d 1190, 1194 n. 2. (9th Cir. 1988). Dismissal for lack of subject matter jurisdiction is proper where the federal claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for a Better Env't. , 523 U.S. 83, 89 (1998). (Citations and internal quotations omitted.)

DISCUSSION

For all of the following reasons, Plaintiff's Complaint should be dismissed without leave to amend.

A. Plaintiff Has Failed to State a Claim Against Defendants.

Plaintiff seeks to recover benefits against Defendants pursuant to 28 U.S.C. § 4207 and 42 U.S.C. § 1997 and alleges jurisdiction pursuant to these sections of the United States Code. However, 28 U.S.C. § 4207 does not exist in the United States Code. Further, while 42 U.S.C. § 1997 defines the term "institution" to ...


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