# Whitten v. Kijakozi

> District Court, S.D. Illinois · October 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10156950

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** October 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

RYNIAH WHITTEN, )
)
Plaintiff, )
)
vs. ) Case No. 23-cv-2403-DWD
)
KILOLO KIJAKOZI, )
)
Defendant. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Ryniah Whitten filed this complaint against Defendant Kilolo Kijakazi,
the Acting Commissioner of the United States Social Security Administration (the
“Commissioner”) for alleged civil rights violations related to Plaintiff’s receipt of social
security or other benefits (Doc. 3). Now before the Court is Plaintiff’s Motion for Leave
to Proceed in forma pauperis (Doc. 7).
Under 28 U.S.C. § 1915(a)(1), a federal court is authorized to permit an indigent
party to commence a civil action without prepaying the required fees if the party submits
an affidavit that includes a statement of all assets he or she possesses and that
demonstrates the party is unable to pay such fees. 28 U.S.C. § 1915(a)(1). Upon a showing
of indigency, the Court must screen the indigent plaintiff’s complaint under Section
1915(e)(2) and dismiss the complaint if it is clearly frivolous or malicious, fails to state a
claim, or is a claim for money damages against an immune defendant. 28 U.S.C. §
1915(e)(2)(B); see also Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“District judges
have ample authority to dismiss frivolous or transparently defective suits spontaneously,
and thus save everyone time and legal expense.”). Upon review of Plaintiff’s Motion

(Doc. 7), the Court is satisfied that Plaintiff is indigent at this time. However, and as
detailed below, Plaintiff cannot meet the second prong required to proceed in forma
pauperis because the complaint fails to state a claim on which relief may be granted.
To proceed in forma pauperis, Plaintiff’s complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The statement must contain sufficient

factual matter, accepted as true, to “state a claim to relief that is plausible on its face,”
which means that the pleaded facts must show there is “more than a sheer possibility that
a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When screening
a pro se plaintiff’s complaint, courts construe the plaintiff’s allegations liberally. Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Courts also “accept all well-pleaded facts as

true and draw reasonable inference in the plaintiff’s favor.” Roberts v. City of Chicago, 817
F.3d 561, 564 (7th Cir. 2016).
In the complaint, Plaintiff alleges that Defendant, the Commissioner, improperly
stopped Plaintiff’s receipt of social security benefits without notice (Doc. 1). Plaintiff
complains that agents of the Social Security Administration located in Florida allegedly

forged a waiver of benefit payments form on Plaintiff’s behalf, which resulted in the
termination of benefits. Plaintiff indicates that this termination occurred in either
September 2021 or April 2023 (Docs. 3, 7). Plaintiff seeks $20 million in damages for
Defendant’s alleged breach of fiduciary duties and the reinstatement of Plaintiff’s
benefits. The Court is unable to discern the exact type of claim Plaintiff is attempting to
pursue here. Plaintiff cites to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), 18 U.S.C. § 242, and Section 16 of the Federal
Reserve Act, 12 U.S.C. § 411 (Docs. 3, 7).
42 U.S.C. § 1983 claims and Bivens actions are “conceptually identical and further
the same policies.” Green v. Carlson, 581 F.2d 669, 673 (7th Cir. 1978), aff'd, 446 U.S. 14
(1980); Bush v. Lucas, 462 U.S. 367, 374 (1983). However, Section 1983 governs claims for
federal rights violations against state actors, while Bivens provides a damages remedy for

certain federal rights violations committed by federal agents. Here, Plaintiff’s allegations
suggest federal or state actors were involved in the termination of Plaintiff’s social
security benefits. However, Plaintiff has only named Defendant Kijakozi, the
Commissioner of the Social Security Administration, as a defendant in this matter. To
plead a claim under either Section 1983 or Bivens, at minimum, Plaintiff must allege facts

demonstrating that the individual defendants were in some way involved in the
constitutional deprivation. Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (to
be liable under § 1983, each individual defendant “must have caused or participated in a
constitutional deprivation.”). Here, the Complaint does not provide enough details of
Defendant’s purported involvement in the events so to indicate that Defendant was

personally involved in the alleged constitutional deprivation. Accordingly, to the extent
Plaintiff is purporting to state a claim under 42 U.S.C. § 1983 claims or Bivens, the
complaint is insufficiently pled and will be dismissed.
The other statutes cited by Plaintiff also do not support a sufficient claim for relief.
18 U.S.C. § 242 is a criminal statute criminalizing the deprivation of civil rights under

color of law. This statute does not provide a private right of action and Plaintiff has no
standing to sue under it. See, e.g., Weiland v. Byrne, 392 F. Supp. 21, 22 (N.D. Ill. 1975) (pro
se Plaintiff has no standing to sue under 18 U.S.C. § 242). Similarly, the Federal Reserve
Act, 12 U.S.C. § 411, provides no private cause of action, but instead governs the issuance
of Federal Reserve notes by the Board of Governors of the Federal Reserve System and
makes clear that these notes are authorized currency of the United States. See United

States v. Snow, 670 F.2d 749, 754 (7th Cir. 1982) (“Congress has authorized the issuance of
Federal Reserve Notes, 12 U.S.C. § 411, and declared them to be legal tender …”).
The Court cannot otherwise discern a basis to assert jurisdiction over the
purported claim alleged in Plaintiff’s complaint. The allegations in Plaintiff’s complaint
allude to a possible claim under the Federal Torts Claim Act (“FTCA”), which provides

jurisdiction for suits against the United States for torts committed by federal officers. See
Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008). In relevant part, the FTCA authorizes:
[C]ivil actions on claims against the United States, for money damages . . .
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or
omission occurred.

28 U.S.C. § 1346(b)(1). However, the United States is the only proper defendant in an
FTCA action. See Jackson, 541 F.3d at 693. Plaintiff did not name the United States as a
defendant, and thus the Complaint does not sufficiently state an FTCA claim.
Likewise, the complaint alludes to an action to reinstate terminated social security
benefits or for judicial review of the decision to terminate Plaintiff’s social security

benefits. However, Plaintiff has not provided enough information in the complaint to
infer that the Court has jurisdiction to review of a final decision of the Commissioner
under 42 U.S.C. § 405(g). Section 405(g) permits an individual to obtain judicial review
of “any final decision of the Commissioner of Social Security made after a hearing to
which [the individual] was a party” by commencing a civil action “within sixty days after
the mailing” of notice of the final decision. Id.; Washington v. Saul, 788 F. App'x 388, 389

(7th Cir. 2019) (unpublished) (“Federal courts may review only ‘final’ decisions of the
Social Security Administration made after a ‘hearing.’”). “For a decision to be ‘final’
under Title II of the Social Security Act, the claimant must complete a multi-step
administrative review process.” Washington, 788 F. App'x at 389 (internal citations
omitted). These steps generally include: an initial waiver request, an opportunity for

reconsideration, a hearing before an administrative law judge, and a review by the
Appeals Council. Id. These steps apply to decisions about the re-entitlement to benefits,
reduction in benefits, termination of benefits, and nonpayment of benefits. See, 20 C.F.R.
§ 404.902(a)-(x).
Plaintiff mentions to two possible terminating events involving either the Social

Security Administration or some other state agency. The first proceeding suggests a
suspicion or termination of benefits notice received in September 2021 from agents in
Florida (Doc. 3, p. 4). The second involves an alleged suspension of benefits from April
2023 (Doc. 7, p. 3). However, the Complaint does not provide further details of the
substance of these documents or proceedings for the Court to determine whether a final
decision from the Commissioner of Social Security was received, or whether these
documents related to a different state or federal agency. In sum, Plaintiff has failed to
coherently explain the timeframe, facts, and legal basis for the claims suggested in the
complaint.
For these reasons, Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 7)
is DENIED, without prejudice, and Plaintiff's Complaint (Doc. 3) is DISMISSED,
without prejudice, for a failure to state a claim. Plaintiff may file an amended complaint
on or before November 15, 2023. Should Plaintiff file an amended complaint in this
matter, the complaint must clearly explain the timeframe, facts, and legal basis for their
claims, that is the who, what, when, where, how, and why behind their allegations.
Plaintiff shall further describe the dates and content of any relevant notices allegedly
received by Defendant or the Social Security Administration that explain the type of
benefits at issue, the timeframe for the termination or suspicion of those benefits, and the
individual actors allegedly responsible for the acts alleged in the complaint. If Plaintiff
fails to file an amended complaint by November 15, 2023, this action will be dismissed
for a failure to abide by a court order pursuant to Fed. R. Civ. P. 41(b).
SO ORDERED.
Dated: October 25, 2023 Lb J

DAVIDW.DUGAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156950. Public record. Not legal advice.