Opinion
No. 2:15-cv-1188 MCE CKD PS
08-25-2015
JESSE STONE, Plaintiff, v. DAVID BUELL, Defendant.
ORDER and FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On July 10, 2015 defendant filed a motion to dismiss. The motion was noticed to be heard on August 19, 2015.
On August 11, 2015, because plaintiff had not filed either an opposition or a statement of non-opposition to the motions, the undersigned continued the hearing on the motion to September 9, 2015 and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than August 19, 2015. Plaintiff was advised that failure to file an opposition would be deemed a statement of non-opposition to the pending motion and would result in a recommendation that this action be dismissed. Although the deadlines have now passed, the court docket reflects that plaintiff has not filed an opposition to the motion or a statement of non-opposition to the motion.
In this action, plaintiff alleges claims against an administrative law judge arising out the administrative adjudication of a claim plaintiff made for Social Security disability benefits. Defendant moves to dismiss for lack of jurisdiction. In reviewing a motion to dismiss for lack of jurisdiction, "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The declarations and documents submitted by defendant in support of the motion to dismiss establish that plaintiff has failed to exhaust his administrative remedies. As such, this court lacks jurisdiction over plaintiff's claims under the Social Security Act and over plaintiff's tort claims. See 42 U.S.C. § 405(h); Hironymous v. Bowen, 800 F.2d 888, 892-94 (9th Cir. 1986) (court lacks jurisdiction over review of Social Security determination where plaintiff has failed to exhaust administrative remedies); see also 28 U.S.C. § 2675; Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (exhaustion of administrative remedies under Federal Tort Claim Act is jurisdictional prerequisite to filing suit in federal court). Although plaintiff has been afforded an ample opportunity to oppose the motion to dismiss, he has failed to do so. The uncontested record before the court establishes that this court lacks jurisdiction. The court will accordingly recommend that the motion to dismiss be granted.
Accordingly, IT IS HEREBY ORDERED that the hearing date of September 9, 2015 on defendant's motion to dismiss is vacated; and
IT IS HEREBY RECOMMENDED that:
1. Defendant's motion to dismiss for lack of jurisdiction (ECF No. 11) be granted; and
2. The Clerk of Court be directed to close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: August 25, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
4 stone1188.57