The opinion
EASTERN DISTRICT OF NEW YORK
X
ANN BURTON,
Plaintiff,
MEMORANDUM
- against - AND ORDER
21-CV-6827 (LDH)
SOCIAL SECURITY ADMINISTRATION,
Defendant.
X
BRIAN M. COGAN, United States District Judge:
Plaintiff Ann Burton (“Burton”), proceeding pro se, has filed this action against a federal
agency, the Social Security Administration, seeking a record of her Social Security benefits.
Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted, but for
the reasons set forth below, the action is dismissed in its entirety.
BACKGROUND
The following facts are taken from plaintiff’s one-page complaint. Plaintiff, a resident of
Florida, alleges that her “requests at five (5) social security offices for a true, accurate
calculations of all earnings” have not been honored and that the Social Security Administration
has “failed to produce actual records/proof as to how my pension is disbursed according to law,
and including U.S. Postal ‘missing’ records” or “any record of benefits which determines
disability or retirement.” She alleges that defendant’s “inaccurate accounting” has “contribut[ed
to her] gross inhumane suffering.” Id.
She asks this Court to order defendant to “comply with laws governing Social Security
Adminstration[’]s calculations, recordkeeping and disbursement.” She further seeks a
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physical and mental torture.”
Plaintiff’s Litigation History
Plaintiff is no stranger to this Court. In 2010-2011, she filed thirteen actions against her
former employers, her union, an employment agency, and individuals associated with these
defendants. Burton v. Shinseki, No. 10-cv-5318; Burton v. American Federation of Government
Employees et al., No. 11-cv-1416; Burton v. Silvercrest Center for Nursing and Rehabilitation et
al., No. 11-cv-1417; Burton v. White Glove Placement, Inc. et al., No. 11-cv-1649; Burton v.
Shinseki et al., No. 11-cv-2030; Burton v. Silvercrest Center for Nursing and Rehabilitation et
al., No. 11-cv-2757; Burton v. New York Police Department et al., No. 11-cv-4071; Burton v.
White Glove Placement, Inc. et al., No. 11-cv-4072; Burton v. United Stated Equal Employment
Opportunity Commission et al., No. 11-cv-4074; Burton v. State Education Dept. et al., No. 11-
cv-4218; Burton v. N.Y.S. Department of Labor et al., No. 11-cv-4274; Burton v. City of New
York et al., No. 11-cv-5345; Burton v. Civil Court of the City of New York et al., No. 11-cv-
5606. Although the actions principally alleged employment discrimination, they also alleged that
various individuals have entered her apartment, removed and then returned documents and other
items, hacked her computer, and otherwise harassed her, allegedly in retaliation for previous
complaints she had filed.
In the fall of 2021, she filed three actions: an action against the Office of Personnel
Management, a federal agency, concerning accounting and distribution of her pension account,
Burton v. Office of Pers. Mgmt., 21-cv-5323 (LDH)(filed Sept. 22, 2021); an action against the
United States and hundreds of federal and state elected officials, Burton v. USA, 21-cv-6238
(LDH) (filed Nov. 1, 2021); and, on the same day as the instant action, a complaint against a
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York, 21-cv-6728 (LDH) (filed Dec. 7, 2021).
STANDARD OF REVIEW
A district court shall dismiss an in forma pauperis action where it is satisfied the action
"(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. §
l 915(e)(2)(B). An action is frivolous when "either: (1) the factual contentions are clearly
baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is
based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141
F.3d 434,437 (2d Cir. 1998) (internal quotations and citations omitted). "[A] finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible." Denton v. Hernandez, 504 U.S. 25, 33 (1992).
In performing the review required under § 1915(e)(2)(B), this Court is mindful that "[ a]
document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers .... "
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). A
court must "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the
strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276,280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir. 1994). If a liberal reading of the
complaint "gives any indication that a valid claim might be stated," the court must grant leave to
amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
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DISCUSSION
Because plaintiff asks this Court to direct a federal agency, the Social Security
Administration (“SSA”), to provide records of her account, the Court liberally construes the
action as a petition for a writ of mandamus directing the SSA to perform a duty as the only
possible basis for this Court’s jurisdiction.1 Nothing in plaintiff’s submission suggests that
plaintiff has requested her Social Security Statement or any records from the SSA and, the Court
is not going to wade into plaintiff’s vaguely-referenced alleged “requests from 2010” with the
SSA.2
Moreover, some of plaintiff's allegations are "wholly incredible." See Denton v.
Hernandez, 504 U.S. at 33. The allegations that she has been a victim of rape, kidnapping,
sodomy, torture and thefts appear particularly irrational. Second, even assuming that plaintiff had
been the victim of such crimes, the complaint does not allege any facts to suggest that the SSA
1 Had plaintiff sought damages, her claim against the SSA would be precluded by the doctrine of
sovereign immunity. "Under the doctrine of sovereign immunity, an action for damages will not
lie against the United States absent consent." Robinson v. Overseas Military Sales Corp., 21
F.3d 502,510 (2d Cir.1994). "Because an action against a federal agency or federal officers in
their official capacities is essentially a suit against the United States, such suits are also barred
under the doctrine of sovereign immunity, unless such immunity is waived." Id. "The doctrine
of sovereign immunity is jurisdictional in nature, see FDIC v. Meyer, 510 U.S. 471, 475 (1994),
and therefore, to prevail, the plaintiff bears the burden of establishing that her claims fall within
an applicable waiver." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
2 If plaintiff seeks a proof of income letter or “Benefit Verification” letter from the SSA, she may
create or log in to her Social Security account to “get instant access.” See
https://www.ssa.gov/myaccount/proof-of-benefits.html (last visited Dec. 13, 2021). According
to the SSA website, the “Benefit Verification letter, sometimes called a "budget letter," a
"benefits letter," a "proof of income letter," or a "proof of award letter," serves as proof of your
retirement, disability, Supplemental Security Income (SSI), or Medicare benefits. You may use
your letter for loans, housing assistance, mortgage, and for other income verification purposes.
You can also use it to prove that you don't receive benefits, have applied for benefits, or that you
have never received Social Security benefits or SSI.” Id.
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that it must be dismissed as frivolous. Livingston v. Adirondack Beverage Co., 141 F.3d at 437.
CONCLUSION
Accordingly, the complaint is dismissed. 28 U.S.C. § 1915(e)(2)(B)(i). The Court has
considered affording plaintiff a chance to amend the complaint, see Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000), but declines to do so given plaintiff’s litigation history and viewing such
an opportunity as futile. A review of the complaint does not suggest that Burton has inadequately
or inartfully pleaded any potentially viable claims.
Further, the Court warns plaintiff that it will not tolerate frivolous litigation and that if she
persists in filing frivolous actions, the Court may enter an Order, after notice and an opportunity
to be heard, barring the acceptance of any future complaint for filing without first obtaining leave
of the Court to do so. 28 U.S.C. § 1651; Iwachiw v. N.Y. State Dept of Motor Vehicles, 396 F.3d
at 529 (2d Cir. 2005); Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (per curiam) (a district
court has the authority to issue a filing injunction when “a plaintiff abuse[s] the process of the
Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive . . .
proceedings.”) (internal quotations and citations omitted).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
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The Clerk of Court is respectfully requested to send a copy of this order to plaintiff by mail,
and to note the mailing on the docket.
Digitally signed by Brian
SO ORDERED.
M. Cogan
_______________________
BRIAN M. COGAN
United States District Judge
Dated: Brooklyn, New York
April 12, 2022
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