United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
P.
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
This
action is before the Court on Plaintiff's pro se
amended complaint (Doc. 3)[1] and motion to proceed without
prepayment of fees and costs (Doc. 2). This matter has been
referred to the undersigned for pretrial disposition pursuant
to 28 U.S.C. § 636(b)(1)(B) and General Local Rule
72(a)(2)(W). Because Diamond has requested leave to proceed
without prepayment of costs and fees (Doc. 2), this Court has
the obligation to undertake a review of his complaint
pursuant to the provisions of 28 U.S.C. § 1915(e). That
statute instructs courts to dismiss any action when it is
determined that an in forma pauperis applicant's
suit is “frivolous or malicious, ” “fails
to state a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). Upon consideration of the pleadings, it is
recommended that this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because Plaintiff has failed to
state a claim against the Social Security
Administration/Social Security Disability and because
Plaintiff has set forth no facts whatsoever in the operative
complaint establishing that this Court can exercise
jurisdiction over this matter, see id.[2]
BRIEF
BACKGROUND
On
October 31, 2019, the pro se Plaintiff filed a form
complaint for review of a social security disability or
supplemental security income decision against “Social
Security, Disability.” (Doc. 3, at 1.) Plaintiff
thereafter supplies identifying information about himself and
the Defendant, though he identifies the Defendant as “U
S Social Security” (id. at 2). As the basis
for jurisdiction, Plaintiff check-marked the box identifying
his claim as a Title II claim for disability insurance
benefits. (Id.) Instead of answering the subsequent
question regarding the date he received notice that
the Commissioner's decision was final, he wrote the
following words/phrases: “civil case fill the form
ever[y] lawyer I can (sic) did not want to take the case
[because] it came for (sic) police brutality[.]”
(Id. at 3.) Moreover, Diamond did not attach to this
form complaint a copy of the Commissioner's final
decision and a copy of the notice he received from the Social
Security Appeals Council that his appeal was denied, as the
form complaint instructed. (See id.) Finally, in the
“Statement of Claim” section of the form
complaint, Diamond wrote that he had “a head injury and
could not get a lawyer” (id.) immediately
following the prompt that he explain why the
Commissioner's factual findings were not supported by
substantial evidence (id.).[3]
DISCUSSION
Upon a
review of Diamond's sparse complaint, it is decidedly
unclear to the undersigned whether Plaintiff's amended
pleading is intended to be: (1) an application for disability
insurance benefits, which must be presented to the Social
Security Administration; or (2) an appeal of a final decision
of the Commissioner of Social Security denying a claim he
made for disability insurance benefits.
There
can be little question but that “[t]he Social Security
Act allows for judicial review of ‘any final decision
[of the Commissioner of Social Security] made after a
hearing[.]'” Smith v. Berryhill, __ U.S.
__, 139 S.Ct. 1765, 1771, 204 L.Ed.2d 62 (2019), quoting 42
U.S.C. § 405(g). As the Supreme Court has explained,
this provision “contains two separate elements: first,
a ‘jurisdictional' requirement that claims be
presented to the agency, and second, a ‘waivable . . .
requirement that the administrative remedies prescribed by
the Secretary[4] be exhausted.'” Id. at
1773 (footnote added), quoting Mathews v. Eldridge,
424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). With
respect to this latter, non-jurisdictional element, the Court
in Smith observed that “[w]hile § 405(g)
delegates to the SSA the authority to dictate which steps are
generally required, [5] . . ., exhaustion of those steps may not
only be waived by the agency, . . ., but also excused by the
courts[.]” Id. at 1773-74. The Court went on
to recognize that “the phrase ‘final
decision' clearly denotes some kind of terminal event,
” id. at 1774, and held that “[w]here,
as here, a claimant has received a claim-ending timeliness
determination from the agency's last-in-line
decisionmaker after bringing his claim past the key
procedural post (a hearing) mentioned in § 405(g), there
has been a ‘final decision . . . made after a
hearing' under § 405(g).” Id. at
1777; see also Id. at 1780 (“We hold that
where the SSA's Appeals Council has dismissed a request
for review as untimely after a claimant has obtained a
hearing from an ALJ on the merits, that dismissal qualifies
as a ‘final decision . . . made after a hearing'
within the meaning of § 405(g).”).
In this
case, Plaintiff does not meet the pleading requirements of
Federal Rule of Civil Procedure 8, which requires a short and
plain statement of the basis of the court's jurisdiction,
the plaintiff's entitlement to relief, and a demand for
relief. Fed.R.Civ.P. 8(a). Initially, not only does Diamond
not allege facts sufficient to show a terminal event bringing
his claim past the key procedural post of a hearing, for
purposes of seeking judicial review under § 405(g), he
has not even alleged the clear “jurisdictional”
requirement that he presented a claim/application for
benefits to the Social Security Administration in the first
instance.[6] See generally Smith, supra. In
addition, Diamond has not provided sufficient facts regarding
the basis for his claim, including the nature of the claim,
if any, presented to the Commissioner. If Diamond seeks to
appeal a decision denying him disability benefits, he must
provide the onset date of disability giving rise to his
claim, the date he applied for disability benefits, the date
those benefits were denied, state why the Commissioner's
factual findings are not supported by substantial evidence in
the record[7] or, otherwise, identify legal errors of
the Commissioner, and attach a copy of the adverse decision
of the ALJ made after a hearing (as well as any subsequent
decision by the Appeals Council) and any other correspondence
he received with regard to his claim. Compare Aka v. SSA
Appeals Officers, 2013 WL 6191062, *2 (N.D.Ga. Nov. 25,
2013) (requiring the plaintiff appealing the denial of
disability benefits to, among other things, name the
Commissioner of Social Security as the defendant and state
the date she applied for benefits) with Sol J. v.
Commissioner, Social Security Administration, 2018 WL
8452559, *3 & 4 (N.D.Ga. Dec. 21, 2018) (finding
plaintiff failed to state a plausible claim for relief where
he failed to allege that “the Commissioner's
factual findings were not supported by substantial evidence
or that the decision was based on a legal error” but,
further ordering an amendment to include the information
referenced in Aka, along with a statement regarding
the onset date of his disability, the date he was denied
benefits, the attachment of a copy of the adverse decision of
the ALJ made after a hearing and any correspondence he
received with regard to his claim, a statement as to the date
he appealed the ALJ's adverse decision to the Appeals
Council, a statement regarding the date he received the
adverse decision from the Appeals Council, and the attachment
of a copy of the adverse decision of the Appeals Council
along with any correspondence he received regarding his
administrative appeal).[8]
In
light of the foregoing, the undersigned recommends that the
Court find that Plaintiff's complaint in this action is
insufficient to survive the review required under 28 U.S.C.
§ 1915(e)(2)(B) and dismiss this case without prejudice
prior to service of process.
CONCLUSION
Based
upon the foregoing, it is RECOMMENDED that
this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because Plaintiff's
Complaint fails to establish that this Court has
subject-matter jurisdiction over his claims and fails to
state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(ii). The undersigned further
RECOMMENDS that Plaintiff be extended leave
to file an amended complaint, see Butler v. Morgan,
562 Fed.Appx. 832, 83 5 (11th Cir. Apr. 3, 2014) (finding
that a district court must grant a plaintiff at least one
opportunity to amend his complaint before dismissal, even if
the plaintiff never seeks leave to amend, if it appears that
the filing of an amended complaint might cure noted
deficiencies), but be cautioned that he must supply
additional information to satisfy this Court that it may
exercise subject-matter jurisdiction and that he has a
plausible claim for relief against the Commissioner of Social
Security.[9]
NOTICE
OF RIGHT TO FILE OBJECTIONS
A copy
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should
note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific
finding or recommendation to which ...