The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DANIEL WILLIAMS, )
)
Plaintiff, )
)
v. ) Case No. 19-3233
)
ANDREW SAUL, )
Commissioner of Social Security, )
)
Defendant. )
OPINION
RICHARD MILLS, United States District Judge:
On March 6, 2020, United States Magistrate Judge Tom Schanzle-Haskins
entered a Report and Recommendation which recommended that Plaintiff’s
Complaint be dismissed for want of prosecution pursuant to Federal Rule of Civil
Procedure 4(m).
Pending also is the Defendant’s motion to dismiss.
I.
On October 2, 2019, Plaintiff Daniel Williams filed his Complaint against the
Social Security Commissioner. On January 23, 2020, Judge Schanzle-Haskins
entered a Text Order noting that the court file did not reflect proper service upon
Defendant and, under Federal Rule of Civil Procedure 4(m), a plaintiff must serve a
defendant within 90 days of filing the complaint. Because more than 90 days had
passed, Judge Schanzle-Haskins directed Plaintiff to file a status report by February
7, 2020 to show cause why the case should not be dismissed for want of prosecution.
There was no further docket activity until Judge Schanzle-Haskins entered the
Report and Recommendation on March 6, 2020. Under 28 U.S.C. § 636(b)(1), the
Plaintiff had 14 days to object to the Report and Recommendation. The Plaintiff did
not file objections to the Report and Recommendation.
A March 17, 2020 “Remark” in the docket states that an attorney assisting the
pro se Plaintiff had called the Clerk and had mailed a motion for extension of time
to file a status report. The attorney (most likely Burke Bindbeutel) also stated that
Defendant had been served. A March 23, 2020 “Clerk’s Notes” entry provides that
the Clerk who spoke to counsel on March 17, 2020 was unaware that counsel had
previously spoken with another Clerk. Counsel had, in fact, emailed a motion for
extension of time to file a status report on February 6, 2020. The motion was held
for several weeks and not docketed pending Attorney Bindbeutel’s submission of
attorney admission documents.
Attorney Bindbeutel’s email is attached to the Plaintiff’s response to
Defendant’s motion to dismiss. The email sought an extension to file a status report
pending counsel’s admission to the Central District of Illinois. The email also noted
that Defendant would be served soon.
Rule 4(m) provides in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against the defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Based on the representations of an attorney who was assisting
the pro se Plaintiff, the Plaintiff did make an attempt prior to the expiration of the
deadline to obtain an extension in which to file a status report and apparently was in
the process of serving the Defendant. Because of those factors and in deference to
the Plaintiff’s pro se status, the Court declines to dismiss the action for want of
prosecution.
II.
The Defendant has also filed a motion to dismiss, asserting that Plaintiff’s
complaint was filed outside the limitations period. After the Appeals Council
declined to assume jurisdiction of the case on July 26, 2019, the Plaintiff had 60 days
from that notice (plus five days to allow for receipt of the notice) to file a civil action.
On October 2, 2019, this action was filed. The claimant has 60 days after the
Commissioner’s final decision to file a civil action. See 42 U.S.C. § 405(g). The
date of receipt of an Appeals Council action is presumed to be five days after the
date of such notice, unless shown otherwise. 20 C.F.R. § 404.901; see also 20 C.F.R.
§ 422.210(c).
In deciding a motion to dismiss, the Court may take judicial notice of matters
in the public record. See Palay v. United States, 349 F.3d 418, 425 n.5 (7th Cir.
2003). The Defendant claims that, assuming the Plaintiff received the letter five
days after it was sent, he had until Monday September 30, 2019 to file the complaint.
The complaint was not filed until October 2, 2019, two days after the deadline. The
pro se Plaintiff attached the envelope to the complaint [d/e 1], which provides that it
was sent via United States Postal Service Priority Mail 3-Day on September 30,
2019. Accordingly, it was mailed within 60 days of the Commissioner’s final
decision, but not received until 62 days had passed.
The 60-day limitations period contained in § 405(g) is not jurisdictional but
rather constitutes a period of limitations. See Bowen v. City of New York, 476 U.S.
467, 478-79 (1986). The limitations period is subject to equitable tolling in a proper
case. See id. at 480.
The general rule is that the date on which a pleading is received by the clerk—
and not the date on which the pleading was mailed--is the date that the pleading is
filed in federal court. Raymond v. Ameritech Corporation, 442 F.3d 600, 604 (7th
Cir. 2006). The “mailbox rule” applies to pleadings submitted by pro se prison
inmates, see Taylor v. Brown, 787 F.3d 851, 858 (7th Cir. 2015), but not pro se
litigants like Plaintiff who are not incarcerated.
The Plaintiff’s complaint was filed two days late. The complaint is dated
September 25, 2019. It is unclear why Plaintiff apparently waited five days to mail
it. In his response to the Defendant’s motion to dismiss, the Plaintiff states that the
equities in his case favor tolling the period of limitations. He then goes on to cite
what he claims are errors in the ALJ’s Decision.
“Generally, a litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Purchase v. Colvin, 2016 WL
6963301, at *2 (S.D. Ill. 2016) (quoting Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814
(2005)). Given that the complaint was untimely by only two days, the Court might
give the Plaintiff the benefit of the doubt if he provided any reason at all why the
filing was late.
However, no reason is given. The Plaintiff has not responded to the
Defendant’s argument.
The Court cannot find that Plaintiff was pursuing his rights diligently and that
an extraordinary circumstance stood in his way if the Plaintiff does not offer any
reason at all for his tardiness in filing the complaint. The Plaintiff’s objections to
the merits of the ALJ’s Decision do not address the elements he must establish in
order to show he is entitled to equitable tolling for the untimely filing.
Because the Plaintiff has not asserted he was pursuing his rights diligently and
that an extraordinary circumstance contributed to the late filing, the Court will grant
the Defendant’s motion to dismiss.
Ergo, the Defendant’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) [d/e 5] is GRANTED.
This case is Dismissed with Prejudice.
The Clerk will enter Judgment and terminate the Report and Recommendation
[d/e 2].
ENTER: September 18, 2020
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge