1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Hezekiah Esau Baker, Case No. 2:21-cv-02128-JAD-BNW
5 Plaintiff, ORDER 6 v.
7 Weststar Credit Union, et al.,
8 Defendants.
9 10 Pro se Plaintiff Hezekiah Esau Baker brings this suit related to his Social Security 11 payments being taken without his consent. Plaintiff submitted the affidavit required by 28 U.S.C. 12 § 1915(a) showing an inability to prepay fees or costs or give security for them. Accordingly, the 13 Court will grant his request to proceed in forma pauperis (at ECF No. 1). 14 The Court will now screen Plaintiff’s complaint (ECF No. 4) and address Plaintiff’s 15 motion at ECF No. 5. 16 I. Screening 17 A. Screening Standard 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 21 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 23 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 24 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 25 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 26 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 27 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 1 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of 4 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 5 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 6 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 9 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 10 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 11 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 B. Screening the Complaint 13 Plaintiff sues Weststar Credit Union (“WSCU”), certain unnamed employees, and 14 Deborah Faris under 42 U.S.C. § 407. ECF No. 4 at 1. Plaintiff alleges that, in 2013, he opened 15 checking and savings accounts with WSCU. Id. at 2. He had his Social Security benefits directly 16 deposited into his savings account. Id. at 3. According to Plaintiff, WSCU was not authorized to 17 transfer money between the two accounts to pay off any debts for Plaintiff. Id. at 2. However, on 18 September 3, 2020, WSCU transferred funds from his savings account to his checking account to 19 pay a debt. Id. Plaintiff alleges that this was a violation of 42 U.S.C. § 407, which prohibits Social 20 Security benefits from being taken from beneficiaries in certain ways. Id. at 2, 3, 4. Plaintiff 21 further alleges that WSCU’s actions “played a substantial role” in Plaintiff being “displaced from 22 his place of residence . . . .” Id. at 4. As a result, Plaintiff seeks monetary damages. Id. 23 42 U.S.C. § 407(a), involving Social Security benefits, provides as follows: 24 The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or 25 payable or rights existing under this subchapter shall be subject to execution, 26 levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. 27 1 42 U.S.C.A. § 407 (West) (emphasis added). The Ninth Circuit has “broadly construed the phrase 2 ‘other legal process’ within Section 407(a).” Lopez v. Washington Mut. Bank, FA, 302 F.3d 900, 3 903 (9th Cir.), opinion amended on denial of reh’g sub nom. Lopez v. Washington Mut. Bank, 4 F.A., 311 F.3d 928 (9th Cir. 2002). It has noted that “Section 407(a) was designed ‘to protect 5 social security beneficiaries and their dependents from the claims of creditors . . . .’” Id. 6 Accordingly, the Ninth Circuit determined that the phrase “other legal process” includes 7 withdrawing Social Security benefits from accounts without consent. Id. at 903-04. 8 Lopez is instructive in determining whether Plaintiff states a claim in this case. In Lopez, 9 the Ninth Circuit specifically considered whether a bank’s overdraft policies violated 42 U.S.C. 10 § 407(a). The bank’s policies allowed customers’ checks to be cashed even if there were 11 insufficient funds in the customers’ accounts. Id. at 902. When this occurred, the accounts would 12 be overdrawn and would incur overdraft fees, which would be covered by Social Security 13 payments the customers had directly deposited into their accounts. Id. at 902-03. The court held 14 that Section 407(a) was not violated by the bank’s overdraft policies because plaintiffs agreed to 15 these policies and chose to have their Social Security benefits directly deposited. Id. at 904. 16 Accordingly, the court concluded that there was simply no indication that the plaintiffs did not 17 voluntarily agree to apply their Social Security benefits in this manner. Id. 18 Here, by contrast, Plaintiff alleges that he had his Social Security benefits directly 19 deposited into this savings account, WSCU did not have authorization to transfer money out of 20 his savings account to cover any debts, and that WSCU did so anyway. ECF No. 4 at 2-3. 21 Accordingly, Plaintiff’s case is distinguishable from Lopez, as Plaintiff alleges that he did not 22 consent to WSCU using his Social Security benefits to pay a debt. Given this fact, the broad 23 construction the Ninth Circuit has given the phrase “other legal process,” and the liberal 24 construction courts are to afford pro se complaints, it appears Plaintiff states a claim against 25 WSCU at least for purposes of surviving screening. 26 Plaintiff does not, however, allege how the other named defendant (Deborah Faris) 27 violated his rights. See ECF No. 4. While Plaintiff generally alleges that WSCU employees 1 specify that Deborah Faris was one of these employees. See id. Indeed, Plaintiff does not allege 2 any specific facts against Ms. Faris that could state a claim for relief against her. See id. 3 Accordingly, the Court will dismiss Ms. Faris without prejudice.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Hezekiah Esau Baker, Case No. 2:21-cv-02128-JAD-BNW
5 Plaintiff, ORDER 6 v.
7 Weststar Credit Union, et al.,
8 Defendants.
9 10 Pro se Plaintiff Hezekiah Esau Baker brings this suit related to his Social Security 11 payments being taken without his consent. Plaintiff submitted the affidavit required by 28 U.S.C. 12 § 1915(a) showing an inability to prepay fees or costs or give security for them. Accordingly, the 13 Court will grant his request to proceed in forma pauperis (at ECF No. 1). 14 The Court will now screen Plaintiff’s complaint (ECF No. 4) and address Plaintiff’s 15 motion at ECF No. 5. 16 I. Screening 17 A. Screening Standard 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 21 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 23 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 24 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 25 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 26 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 27 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 1 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of 4 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 5 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 6 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 9 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 10 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 11 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 B. Screening the Complaint 13 Plaintiff sues Weststar Credit Union (“WSCU”), certain unnamed employees, and 14 Deborah Faris under 42 U.S.C. § 407. ECF No. 4 at 1. Plaintiff alleges that, in 2013, he opened 15 checking and savings accounts with WSCU. Id. at 2. He had his Social Security benefits directly 16 deposited into his savings account. Id. at 3. According to Plaintiff, WSCU was not authorized to 17 transfer money between the two accounts to pay off any debts for Plaintiff. Id. at 2. However, on 18 September 3, 2020, WSCU transferred funds from his savings account to his checking account to 19 pay a debt. Id. Plaintiff alleges that this was a violation of 42 U.S.C. § 407, which prohibits Social 20 Security benefits from being taken from beneficiaries in certain ways. Id. at 2, 3, 4. Plaintiff 21 further alleges that WSCU’s actions “played a substantial role” in Plaintiff being “displaced from 22 his place of residence . . . .” Id. at 4. As a result, Plaintiff seeks monetary damages. Id. 23 42 U.S.C. § 407(a), involving Social Security benefits, provides as follows: 24 The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or 25 payable or rights existing under this subchapter shall be subject to execution, 26 levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. 27 1 42 U.S.C.A. § 407 (West) (emphasis added). The Ninth Circuit has “broadly construed the phrase 2 ‘other legal process’ within Section 407(a).” Lopez v. Washington Mut. Bank, FA, 302 F.3d 900, 3 903 (9th Cir.), opinion amended on denial of reh’g sub nom. Lopez v. Washington Mut. Bank, 4 F.A., 311 F.3d 928 (9th Cir. 2002). It has noted that “Section 407(a) was designed ‘to protect 5 social security beneficiaries and their dependents from the claims of creditors . . . .’” Id. 6 Accordingly, the Ninth Circuit determined that the phrase “other legal process” includes 7 withdrawing Social Security benefits from accounts without consent. Id. at 903-04. 8 Lopez is instructive in determining whether Plaintiff states a claim in this case. In Lopez, 9 the Ninth Circuit specifically considered whether a bank’s overdraft policies violated 42 U.S.C. 10 § 407(a). The bank’s policies allowed customers’ checks to be cashed even if there were 11 insufficient funds in the customers’ accounts. Id. at 902. When this occurred, the accounts would 12 be overdrawn and would incur overdraft fees, which would be covered by Social Security 13 payments the customers had directly deposited into their accounts. Id. at 902-03. The court held 14 that Section 407(a) was not violated by the bank’s overdraft policies because plaintiffs agreed to 15 these policies and chose to have their Social Security benefits directly deposited. Id. at 904. 16 Accordingly, the court concluded that there was simply no indication that the plaintiffs did not 17 voluntarily agree to apply their Social Security benefits in this manner. Id. 18 Here, by contrast, Plaintiff alleges that he had his Social Security benefits directly 19 deposited into this savings account, WSCU did not have authorization to transfer money out of 20 his savings account to cover any debts, and that WSCU did so anyway. ECF No. 4 at 2-3. 21 Accordingly, Plaintiff’s case is distinguishable from Lopez, as Plaintiff alleges that he did not 22 consent to WSCU using his Social Security benefits to pay a debt. Given this fact, the broad 23 construction the Ninth Circuit has given the phrase “other legal process,” and the liberal 24 construction courts are to afford pro se complaints, it appears Plaintiff states a claim against 25 WSCU at least for purposes of surviving screening. 26 Plaintiff does not, however, allege how the other named defendant (Deborah Faris) 27 violated his rights. See ECF No. 4. While Plaintiff generally alleges that WSCU employees 1 specify that Deborah Faris was one of these employees. See id. Indeed, Plaintiff does not allege 2 any specific facts against Ms. Faris that could state a claim for relief against her. See id. 3 Accordingly, the Court will dismiss Ms. Faris without prejudice. Plaintiff may seek to amend his 4 complaint in compliance with the Federal Rules of Civil Procedure and the Local Rules if he can 5 allege specific facts against Ms. Faris to state a claim against her. 6 II. Plaintiff’s Motion (ECF No. 5) 7 Plaintiff’s motion at ECF No. 5 appears to have been filed in two cases (this case and 8 2:21-cv-01332-GMN-NJK). See ECF No. 5 at 1. Plaintiff’s motion contains many thoughts and is 9 difficult to follow. See ECF No. 5. However, it appears that it should only have been filed in 10 21cv1332, as Plaintiff requests that the Court send him a copy of his third amended complaint. Id. 11 at 5-6, 12. Plaintiff has not filed a third amended complaint in this case but has filed one in 12 21cv1332. See ECF No. 24 in 2:21-cv-01332-GMN-NJK. Additionally, the caption on Plaintiff’s 13 motion contains defendants that are not sued in this case but are sued in 21cv1332. See id. at 1. 14 Accordingly, the Court will deny Plaintiff’s motion in this case, as it appears it should have only 15 been filed in 21cv1332. To the extent Plaintiff seeks relief in this case, he must file an appropriate 16 motion that is applicable to this case only. 17 III. CONCLUSION 18 IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed in forma pauperis 19 (ECF No. 1) is GRANTED. 20 IT IS FURTHER ORDERED that this case will proceed against Weststar Credit Union. 21 IT IS FURTHER ORDERED that Deborah Faris is dismissed without prejudice. 22 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff one blank copy 23 of form USM-285. 24 IT IS FURTHER ORDERED that Plaintiff shall have until April 27, 2022 to fill out and 25 file the required USM-285 form. On the form, Plaintiff must fill in an address for defendant 26 Weststar Credit Union where it will accept service of process. 27 1 IT IS FURTHER ORDERED that, if Plaintiff timely files the USM-285 form, the Court 2 || will issue a separate order to effectuate service. If Plaintiff does not file the USM-285 form, the 3 || Court may recommend that this case be dismissed. 4 IT IS FURTHER ORDERED that Plaintiff's motion at ECF No. 5 is DENIED. 5 6 DATED: March 31, 2022. , LK la BRENDA WEKSLER 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28