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Birdwell v. Concannon

*fn* submitted: July 21, 1993.

WALLACE S. BIRDWELL, PLAINTIFF-APPELLANT,
v.
KEVIN CONCANNON, DIRECTOR, OREGON STATE DEPARTMENT OF HUMAN RESOURCES; CHARLES CROOKHAM; DENISE G. FJORDBECK, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-92-06237-MRH. Michael R. Hogan, District Judge, Presiding

Before: Browning, Tang, and Norris, Circuit Judges.

MEMORANDUM

Wallace S. Birdwell appeals pro se the district court's dismissal of his civil rights complaint for failure to state a claim against the defendants. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Birdwell's amended complaint,*fn1 construed liberally, alleged that the defendants wrongfully "assigned" his family's Social Security benefits in violation of 42 U.S.C. § 407*fn2 when those benefits were considered as income in the denial of his application for Aid for Families with Dependent Children. Birdwell sought damages for alleged violations of various civil rights statutes and constitutional provisions.*fn3

Birdwell apparently sued Kevin Concannon in his official capacity as Director of the Oregon State Department of Human Resources.*fn4 Former Oregon Attorney General Charles Crookham and Assistant Attorney General Denise Fjordbeck apparently were sued because they represented Concannon below.

"We review a dismissal for failure to state a claim de novo. To uphold such a dismissal, it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted). Because Birdwell is proceeding pro se, we must construe his pleadings liberally. See id.

"Neither a State nor its officials acting in their official capacities are 'persons' under [42 U.S.C.] § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Concannon, therefore, is not subject to liability for damages under the civil rights statutes when he is sued in his official capacity. See Hafer v. Melo, 112 S. Ct. 358, 362 (1991); Will, 491 U.S. at 70-71 & n.10.

Birdwell also seems to be attempting to sue Concannon for damages directly under 42 U.S.C. § 407. Section 407 is designed to protect Social Security benefits from the reach of creditors. Neavear v. Schweiker, 674 F.2d 1201, 1205 (7th Cir. 1982). We can conceive of no set of facts that could be proved that would entitle Birdwell to damages from Concannon under section 407 or the civil rights statutes. Dismissal of the action against Concannon was therefore proper. See King, 814 F.2d at 567.

In addition, Birdwell alleged that Crookham and Fjordbeck filed fraudulent litigation, i.e., a motion to dismiss the original complaint, and conspired in the assignment of Social Security benefits. Birdwell alleged no facts that, if proved, would subject Crookham or Fjordbeck to liability under section 407 or the civil rights statutes. Dismissal of the action against them was therefore proper. See id.

Because Birdwell's amended complaint failed to state a claim against any of the defendants, the district court properly denied his motions for a preliminary injunction and for sanctions.

AFFIRMED.*fn5

Disposition

AFFIRME ...


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