United States District Court, E.D. California
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
19, 2017, the court held a hearing on defendant Ballon's
motion to dismiss this action for failure to state a claim.
(ECF No. 34.) Plaintiff appeared pro se, and Philip
Scarborough appeared for Gregory Broderick on behalf of
defendant. Plaintiff filed an opposition to the motion, and
defendant filed a reply. (ECF Nos. 37 & 38.) After
arguments, the court took the matter under submission.
action proceeds on the amended complaint filed February 6,
2017. (ECF No. 16 (“FAC”)). In the
FAC, plaintiff alleges that defendant Ballon is the manager
of the Social Security Administration branch in Stockton,
entrusted in his official capacity with “the
distribution of benefits and services to its payees within
its local jurisdiction.” (FAC at 1.) Ballon is the
defendant in this action “in his private
2012, plaintiff filed for divorce against her husband of 16
years. The San Joaquin County Superior Court issued a support
order of $800 per month, which was mailed to the Stockton
field office of the Social Security Administration
(“SSA”). There was no response. Later that year,
the amount was reduced to $437 per month. In 2013, plaintiff
sent a letter to the SSA enclosing a copy of the order. A Mr.
Monty at the SSA called to inform her that the order would
not be honored because it was not directed to the SSA, but to
plaintiff's ex-husband. Plaintiff hired a process server
who again served the support order on the SSA, but it did not
respond. (FAC at 2-3.) In 2014, plaintiff sent a letter to
Constituent Services in the Offices of Senator Barbara Boxer,
asking for help in this matter. On July 18, 2014, Ballon
responded to Boxer's department of Constituent Services
and “denied being properly served” and
“denied that there ever was a valid Earnings Assignment
order.” (FAC at 4.) Boxer's office forwarded
Ballon's letter to plaintiff. Later that year, plaintiff
received another form letter from the SSA, not signed by
2015, plaintiff learned that her ex-husband had been located
in Reno, Nevada. In November 2015, a SSA branch in Richmond,
California informed her that the Earnings Assignment Order
would be honored and amounts withheld accordingly. (FAC at
4.) Plaintiff asserts that the Stockton SSA should have also
honored the order. She claims defendant “is personally
liable” under Bivens for denying her property
right to court-ordered support without due process of law and
for “arbitrarily refusing to honor the valid Earnings
Assignment Order” of the San Joaquin County court.
(Id. at 5.)
order 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 Atlantic Corp. v. Twombly, 550
U.S. 544 (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.
235-236 (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, 556 U.S. 662, 678 (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.”
considering a motion to dismiss, the court must accept as
true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hospital Trustees, 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.'” National
Organization for Women, Inc. v. Scheidler, 510 U.S. 249,
256 (1994), quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). Moreover, pro se pleadings are held
to a less stringent standard than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972).
argues that plaintiff has not stated a claim against
defendant because she has not alleged that he personally
violated her constitutional rights; all he did was write a
letter to Constituent Services in Senator Boxer's office
addressing plaintiff's inquiry about the support
order. “There is no allegation that Mr.
Ballon even rejected plaintiff's garnishment order, much
less that he did so in an unconstitutional manner.”
(ECF No. 34-1 at 1.) Defendant further argues that he is
entitled to qualified immunity because plaintiff has not
alleged facts showing that he personally violated her rights
under “clearly established law.” (Id.)
is the federal analog to suits brought against state
officials under 42 U.S.C. § 1983. Ashcroft v.
Iqbal, 556 U.S. 662, 676-76 (2009). “Because
vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”
Id. at 676. “Only federal officials who
actually participate in alleged violations are subject to a
Bivens-type suit.” O'Neal v. Eu,
866 F.2d 314 (9th Cir. 1989) (collecting cases). “A
plaintiff must plead more than merely a negligent act by a
federal official in order to state a colorable claim under
Bivens.” Id. Under this standard,
plaintiff has failed to state a Bivens claim against
defendant, and dismissal of this claim is warranted.
under California law, when a copy of a notice of levy is
served on a third party holding the property sought to be
levied upon, that “shall suffice as the notice of levy
to that person.” Cal. Code Civ. Proc. § 699.545.
Under Cal. Code of Civil Procedure § 706.030(a), a
“withholding order for support” may be issued to
collect “delinquent amounts payable under a judgment
for the support of a child, or spouse or former spouse, of
the judgment debtor.” A court may also issue an
“earnings assignment order for support” under
Cal. Family Code § 5200, et seq. Third parties are
required to comply with the terms of such orders. Thus it is
possible plaintiff may be able to assert a state law claim
against defendant in his official capacity, insofar as the
Stockton field office of the SSA allegedly failed to comply
with a court order. Accordingly, plaintiff will be granted an
opportunity to amend the complaint.
plaintiff chooses to amend the complaint, plaintiff must set
forth the jurisdictional grounds upon which the court's
jurisdiction depends. Federal Rule of Civil Procedure 8(a).
Further, plaintiff must demonstrate how the conduct
complained of has resulted in a deprivation ...