Laifer et al v. Social Security Administration Employees et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Warren Laifer and
Gail Anne Laifer
v. Case No. 17-cv-425-PB
Nancy A. Berryhill, Acting
Commissioner, Social Security
Administration; New Hampshire
Department of Health and Human
Services; and Shania Sanborn
REPORT AND RECOMMENDATION
Appearing pro se and in forma pauperis, Warren and Gail
Laifer have filed a complaint (doc. nos. 1 and 3), which is
before this magistrate judge for preliminary review. See LR
4.3(d)(2). For the reasons that follow, I am issuing an order
granting plaintiffs leave to amend their complaint to assert a
properly exhausted and timely claim based upon the reduction of
their Social Security benefits, however I also recommend
dismissal of all of their other claims.
I. The Legal Standard
When reviewing a pro se complaint, I must construe it
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
After reviewing a complaint filed by parties such as the
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 1 of 10

2
Laifers, who are not incarcerated and who are proceeding in
forma pauperis, I may
recommend to the court that the filing be dismissed
because the allegation of poverty is untrue, the court
lacks subject matter jurisdiction, or the action is
frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief[;
or]
. . . grant the party leave to file an amended filing
in accordance with the magistrate judge’s directives.
LR 4.3(d)(2)(A) & (B); see also 28 U.S.C. § 1915(e)(2). To
state a claim upon which relief may be granted, 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 Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Gordo-González v.
United States, 873 F.3d 32, 35 (1st Cir. 2017).
II. Background
The facts in this section are drawn from the Laifers’
complaint, which consists of documents 1 and 3. See Endorsed
Order, Nov. 7, 2017.
As a preliminary matter, the court notes that the Laifers’
complaint is convoluted and difficult to follow. That said,
they allege that they both are or have been eligible for, and
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 2 of 10

3
have received, Social Security benefits, food stamps, and some
form of housing assistance. At some point, their Social
Security and food stamp benefits were reduced. The reasons for
those reductions are hinted at, but not fully described, in the
complaint. According to plaintiffs:
We were defrauded by the Social Security
Administration [“SSA”] and all papers and answers they
gave were [lies] with criminal intent to defraud. The
same applies to D.H.H.S. food stamp program. All
venues of handling this have been attempted – we need
to talk to a federal judge in chambers.
Compl. (doc. no. 3 at 2). As to the venues in which they have
pursued their claims, plaintiffs elaborate: “We appeared at both
Social Security and food stamps office[s], [and] contacted
Senator Shaheen’s office staffers.” Compl. (doc. no. 1 at 2).
With regard to conduct by Shania Sanborn on which
plaintiffs base their claim(s) against her, they allege:
Shania Sanborn said prior to our deficit [presumably
the reduction in their . . . benefits], call the city,
call the state, call the federals, and steal take all
of our benefits, what a sick sociopath, pathological
liar who should be questioned about the sickening
children episode. She organized all the action. The
amounts to be stole[n] and the exact [number] of food
stamps, social security were known, stated by Shania’s
crews prior to Gail and I knowing. Also she knew and
told them about Renee Laifer’s home address and U.F.T.
benefits, some type of gambling operation was going
on. If we died, insurance policies, last will [and]
testaments, estates, please get them into a courtroom
so they can explain it with us both present.
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 3 of 10

4
Compl. (doc. no. 1 at 4-5). Other than alleging that Sanborn’s
address is the same as the address of a rooming house in which
they once resided, plaintiffs do not indicate how they and
Sanborn are connected or what role Sanborn may have played in
causing any injury they claim to have suffered.
In the heading of their complaint, plaintiffs list the
following causes of action:
grand larceny, fraud, mail fraud, racketeering,
organized interstate stalking, cyber def[amation]/
slander, identity theft, invasion of medical privacy,
child abuse, child labor, elder abuse.
Compl. (doc. no. 1 at 1). In the body of their complaint, they
accuse defendants of “theft of benefits, racketeering, organized
grand larceny, theft, organized vocal harassment, I.D. theft,
stalking interstate.” Id. at 3. While plaintiffs list numerous
legal theories, their complaint includes few supporting factual
allegations. As for relief, plaintiffs seek to recover Social
Security and food stamp benefits they believe were wrongly
withheld from them, and they also ask for placement in housing
for the elderly.
III. Discussion
A. Defendant Sanborn
Defendant Sanborn should be dropped from this case. While
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 4 of 10

5
plaintiffs’ discussion of Sanborn is long on invective, their
complaint, even when read most liberally, see Erickson, 551 U.S.
at 94, does not state a plausible claim for relief against
Sanborn. Thus, plaintiffs claim(s) against her should be
dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Criminal Conduct
Many of the legal claims in plaintiffs’ complaint appear to
be assertions that defendants engaged in criminal conduct. But
generally speaking, there is no federal right to have criminal
wrongdoers prosecuted. See Nieves-Ramos v. Gonzalez-de-
Rodríguez, 737 F. Supp. 727, 728 (D.P.R. 1990) (citing Linda R.
S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen
lacks a judicially cognizable interest in the prosecution or non
prosecution of another”)). For that reason, to the extent that
plaintiffs assert claims based upon defendants’ allegedly
criminal conduct, those claims should be dismissed. See 28
U.S.C. § 1915(e)(2)(B)(ii).
C. RICO Violations
Plaintiffs also appear to assert that defendants are liable
to them for racketeering, in violation of the Racketeer
Influenced and Corrupt Organization (“RICO”) Act. “To state a
civil RICO claim . . . a plaintiff must allege ‘(1) conduct, (2)
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 5 of 10

6
of an enterprise, (3) through . . . a pattern . . . of
racketeering activity.’” Home Ortho. Corp. v. Rodríguez, 781
F.3d 521, 528 (1st Cir. 2015) (quoting Kenda Corp. v. Pot O’Gold
Money Leagues, Inc., 329 F.3d 216, 233 (1st Cir. 2003)). The
RICO statute, in turn, “specifically enumerates what kinds of
illegal acts count as ‘racketeering,’” Home Ortho., 781 F.3d at
528, and that enumeration includes, among other things, mail
fraud and fraud in connection with identification documents, see
18 U.S.C. § 1961(a). “[T]he civil damages provision of the RICO
statute . . . allows ‘[a]ny person injured in his business of
property by reason of a [RICO violation]’ to recover damages.”
Painters & Allied Trades Dist. Council 82 Health Care Fund v.
Forest Labs., Inc. (In re Calexa & Lexapro Mktg. & Sales
Practices Litig.), 315 F.R.D. 116, 123-24 (D. Mass 2016
(citations omitted).
While plaintiffs’ complaint uses the words “racketeering,”
“mail fraud,” and “identity theft,” it falls short of alleging
facts that, if proven, would establish that any defendant
engaged in two or more predicate acts of racketeering, conducted
by an enterprise, that proximately caused injury to plaintiffs’
business or property interests. Because plaintiffs’ complaint
fails to state a claim under RICO, to the extent that plaintiffs
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 6 of 10

7
are asserting RICO claims, any such claims should be dismissed.
See 28 U.S.C. § 1915(e)(2)(B)(ii).
D. Reduction of Food Stamp Benefits
Plaintiffs’ next claim is that the New Hampshire Department
of Health and Human Services (“DHHS”) erroneously reduced the
amount of their food stamp benefits. When a food stamp
recipient wishes to challenge a decision concerning eligibility
for benefits, the proper way to do so is by asking for a fair
hearing from DHHS. See 7 C.F.R. § 273.15(a). “The only
judicial review of a fair hearings decision issued by [DHHS] is
by petition for a writ of certiorari [to the New Hampshire
Supreme Court].” In re Kalar, 162 N.H. 314, 318 (2011) (quoting
In re Walker, 138 N.H. 471, 473 (1994)). Accordingly, the court
lacks subject matter jurisdiction over plaintiffs’ claim
concerning the reduction of their food stamp benefits. See
Trefry v. Tracy, No. 1:14-cv-00044-NT, 2014 WL 2154263, at *5
(D. Me. May 22, 2014); see also Kilroy v. Mayhew, 841 F. Supp.
2d 414, 419-24 (D. Me. 2012) (ruling that subject matter
jurisdiction over food stamp eligibility decision was precluded
by Burford abstention doctrine) (citing Burford v. Sun Oil Co.,
319 U.S. 315 (1943)). Because the court lacks subject matter
jurisdiction over plaintiffs’ food stamp claim, it should be
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 7 of 10

8
dismissed. See LR 4.3(d)(2)(A); Gordo-González, 873 F.3d at 37
(affirming district court’s dismissal of claim over which it
lacked subject matter jurisdiction).
E. Reduction of Social Security Benefits
All that remains is plaintiffs’ claim that their Social
Security benefits were erroneously reduced. However, it is well
established that before a person may challenge a reduction in
Social Security benefits in the district court, he or she must
exhaust the administrative remedies available through the SSA.
See Wilson v. Sec’y of HHS, 671 F.2d 673, 677 (1st Cir. 1982)
(citing Mathews v. Eldridge, 424 U.S. 319, 328 (1976)).
Exhaustion, in turn, consists of pursuing an administrative
remedy through the SSA and receiving a “final decision of the
Commissioner of Social Security made after a hearing.” 42
U.S.C. § 405(g). Moreover, after receiving such a decision, a
plaintiff must commence his or her civil action “within sixty
days after the mailing to him [or her] of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.” Id.
Here, while plaintiffs broadly allege that “all venues of
handling this have been attempted,” Compl. (doc. no. 3 at 2),
they have neither demonstrated nor alleged that they have
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 8 of 10

9
pursued their claim all the way to a final decision from the
Acting Commissioner. However, because plaintiffs’ complaint
leaves open the possibility that they had exhausted their
administrative remedies and filed this action within sixty days
after receiving notice of a decision by the Acting Commissioner,
dismissal of their claim against the Acting Commissioner is not
warranted at this time. Therefore, in an Order issued
simultaneously with this Report and Recommendation, plaintiffs
are granted leave to amend their complaint to demonstrate that
they have received a final decision from the Acting Commissioner
and that this civil action was timely filed.
IV. Conclusion
For the reasons described above, all of plaintiffs’ claims,
other than their Social Security claim, should be dismissed for
failure to state a claim upon which relief can be granted or for
lack of subject matter jurisdiction.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The 14-day period may be extended upon
motion. Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 9 of 10

10
right to appeal the district court’s order. See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 9, 2017
cc: Warren Laifer, pro se
Gail Laifer, pro se
Case 1:17-cv-00425-PB Document 4 Filed 11/09/17 Page 10 of 10