Gandy v. Kijakazi

FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Sep 21, 2021 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JAMES E. G., NO: 2:20-CV-118-RMP 8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION AND DISMISSING AMENDED COMMISSIONER OF SOCIAL COMPLAINT SECURITY, Defendant.

13 BEFORE THE COURT is the Report and Recommendation issued by United States Magistrate Judge Mary K. Dimke on August 25, 2021, ECF No. 12, recommending that the Court dismiss without further leave to amend Plaintiff James G.’s1 Amended Complaint, ECF No. 11. Objections were due on September 8, 2021, with none received. However, Plaintiff filed an unauthorized “Second Amended Complaint” on September 7, 2021. ECF No. 14.

1 The Court uses Plaintiff’s first name and last initial to protect his privacy.

1 Plaintiff asserts in his most recent-filed document that he exhausted administrative remedies, and requests that this Court “stay” the dismissal of this case “pending any/all lower court S.S.I. related issues, as it obviously appears, that without this courts ‘observation’ that they will continue to blatantly ‘screw me’ without basis[.]” ECF No. 14 at 4.

6 While the Court empathizes with Plaintiff’s predicament, this Court may not exercise jurisdiction until after the Commissioner of Social Security renders a final decision after a hearing. See ECF No. 12 (citing 42 U.S.C. § 405(g)). Plaintiff’s assertion that he exhausted administrative remedies is conclusory and not supported by specific allegations. Without jurisdiction, this Court cannot retain this case while Plaintiff pursues any other relief. The Court joins the Magistrate Judge in encouraging Plaintiff to seek assistance from any community-based resource available to him. See ECF No. 12 at 8 (providing information about the “SOAR Across Washington” resource).

15 Accordingly, after reviewing the Report and Recommendation and relevant authorities, the Court finds that the Magistrate Judge’s determinations are correct.

17 However, the Court clarifies that, in adopting the Magistrate Judge’s conclusion that the Court lacks jurisdiction to hear Plaintiff’s claims because he did not exhaust administrative remedies, dismissal shall be without prejudice. See Tijerino v. Stetson Desert Project, LLC, 934 F.3d 968, 971 n.2 (9th Cir. 2019) (“[I]n general, dismissal for lack of subject matter jurisdiction should be without prejudice.”).

3 Accordingly, IT IS HEREBY ORDERED: 4 1. The Report and Recommendation, ECF No. 12, is ADOPTED in its 5 entirety.

6 2. Plaintiff’s Amended Complaint, ECF No. 11, is DISMISSED 7 WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND 8 because further amendment would be futile.

9 3. To the extent that a certificate of appealability (“COA”) is required to 10 appeal the dismissal of this action, the Court denies a COA.

11 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, provide a copy of this Order and ECF No. 12 to Plaintiff at his last known address and counsel for the Commissioner, if any, and close this case.

14 DATED September 21, 2021.

s/ Rosanna Malouf Peterson 16 ROSANNA MALOUF PETERSON United States District Judge