Morris v. The United States of America (GOV)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KEITH S. MORRIS,

Plaintiff,

20-CV-2015 (LLS)

-against-

ORDERTO AMEND

THE UNITED STATES OF AMERICA

(GOV.), et al.,

Defendants.

LOUIS L. STANTON, United States District Judge:

Plaintiff, Keith S. Morris, a New YorkCounty resident appearing pro se, brings this “Writ

of Assistance” seeking, among other things,“to consolidate this complaint with the plaintiff’s

litigation in the Social Security AdministrationCourts.” By order dated April 15, 2020, the

Court granted Plaintiff’s request to proceed without prepayment of fees, that is,in forma

pauperis.

For the reasons set forth below, the Court dismisses from the actionthe United States

Government,William Barr, Nancy A. Berryhill, and President Donald Trump,and grants

Plaintiff leave to file an amended complaint against the Commissioner of the Social Security

Administration, within sixty days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis complaint, or portion thereof, that is

frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B); see

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

dismiss a complaint when the Court lacks subject matter jurisdiction.See Fed. R. Civ. P.

12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474(2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in

original).

BACKGROUND

Plaintiff brings this actionrequesting that the Court consolidate this matter with his

Social Security Administration (SSA) proceedings. He names as defendants William Barr, the

Attorney General; Nancy A. Berryhill, the former SSACommissioner; Andrew Saul, the current

SSA Commissioner; President Donald J. Trump; and the United States of America.He

requests this Courts [sic] intervention because plaintiff’s claim will be time barred

via Statute of Limitations, as a result of the defendants delaying & stalling tactics

against a claim Defendants can’t defend, so defendants with-hold benefits until

feasible for defendants’ Advantage, which is usually the peril of plaintiff’s

complaint.

(ECF No. 2, at 4.) He claims that

Defendants’ license status at any vocational hearing requires the defendants to

notify the Plaintiff of traps and concealed dangers hidden in plain sight, and

defendants neither notified the plaintiff nor made plaintiff aware of the hidden

dangers at the premises of the vocational hearing; moreover, the defendants’

license at the hearing prejudiced the plaintiff as far as the Carriage of Justice;

regarding, the duty of care the license magistrate would owe the plaintiff. And still

due violate the abuse of discretion & process. After it was already been given.

(Id.at 5.) He also claims that

Defendants owe[] the plaintiff a duty to hold the hearing at a fair & non-

advantageous venue Free of hazards, as a result, defendants are withholding the

Plaintiff’s social security benefits, which explicitly is nonforfeitable because it’s a

vested benefit to the plaintiff’s retirement plan, and the gist of plaintiff’s

complaint.

(Id.)

DISCUSSION

A. Social Security Administration

The Social Security Act permits claimants to seek review in federal court of a “final

decisionof the Commissioner of Social Security made after a hearing to which [the claimant]

was party.” 42 U.S.C. § 405(g). If a complaint does not contain allegations showing that there

has been a final decision, then it does not satisfy the requirements for jurisdiction under §405(g).

See Weinberger v. Salfi, 422 U.S. 749, 764(1975) (“The statute empowers district courts to

review a particular type of decision by the Secretary, that type being those which are ‘final’ and

‘made after a hearing.’”).

The “final decision” requirement has two elements. The first is the requirement that a

claim for benefits be presented to the Commissioner of Social Security. The second is the

requirement that the administrative remedies of the Social Security Administration (SSA) be

exhausted.Abbey v. Sullivan, 978 F.2d 37, 43 (2d Cir. 1992) (citing Bowen v. City of New York,

476 U.S. 467, 483 (1986)). To exhaust the administrative reviewprocess, a plaintiff must:

(1) receive an initial determination concerning the computation of benefits; (2) seek

reconsideration; (3) request a hearing before an administrative law judge (ALJ); and (4) request

that the Appeals Council review the ALJ’s decision. 42 U.S.C. § 405(g); 20 C.F.R.

§404.900(a)(1)-(5). Once the Appeals Council issues a final decision, the plaintiff may seek

review of it in a federal district court.1

1 “[I]f . . . the [Appeals] Council denies the request for review, the ALJ’s opinion

becomes the final decision.”Sims v. Apfel, 530 U.S. 103, 107 (2000). “If a claimant fails to

request review from the Council, there is no final decision and, as a result, no judicial review in

most cases.” Id.

A plaintiff’s failure to exhaust may be excused, either by the Commissioner or, under

limited circumstances, by the courts. City of New York v. Heckler, 742 F.2d 729, 736 (2d Cir.

1984).But “exhaustion is the rule, waiver the exception.” Abbey, 978 F.2dat 44.Courts look to

the following factors to excuse failure to exhaust: “(1) that the claim is collateral to a demand for

benefits;(2) that exhaustion wouldbe futile; and (3) that plaintiff[] would suffer irreparable harm

if required to exhaust administrative remedies.”Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir.

1996) (citing Abbey, 978 F.2d at 44).

Because Plaintiff requests that this action be consolidated with his SSA proceedings, it

does not appear that he has exhausted his administrative remedies or received a final decision

from the Commissioner of Social Security regarding his claims for benefits.Plaintiff also does

not set forth facts demonstrating that any failure to exhaust should be excused. Because Plaintiff

does not allege facts showing that this Court has jurisdictionunder §405(g) to hear hisclaims,

his claims concerning his right to benefits cannot proceed at this time.

Second Circuit precedent is clear that “[a] pro secomplaint should not [be] dismiss[ed]

without [the Court’s] granting leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d

290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal

quotation marks omitted)). Because the nature and viability of Plaintiff’s claims are not clear, the

Court grants Plaintiff leave to amend his complaint to show that he exhausted his administrative

remedies with the SSA before filing this action in federal court, or to set forth facts showing that

his failure to exhaust administrative remedies should be excused, consistent with the standards

set forth above.

B. Sovereign Immunity

Sovereign immunity bars federal courts from hearing all suits for monetary damages

against the federal government, except where sovereign immunity has been waived. United

States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584,

586 (1941)). “Because an action against . . . 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.” Robinson v. Overseas Military Sales

Corp., 21 F.3d 502, 510 (2d Cir. 1994). Here, Plaintiff does not assert any facts suggesting that

any of the defendants were involved personally in violating his rights. These defendants are

therefore immune from any liability under the doctrine of sovereign immunity. The Court

therefore dismisses Plaintiff’s claims against the United States Government, Barr, Berryhill, and

President Trump. See 28 U.S.C. § 1915(e)(2)(B) (iii).

LEAVE TO AMEND

Plaintiff is granted leave to amend his complaint to detail his claim against the

Commissioner of the Social Security Administration. Using the complaint form for actions

brought under 42 U.S.C. § 405(g), Plaintiff must:

a) provide the date of the ALJ’s decision;

b) provide the date of the Appeals Council letter;

c) provide the date he received the Appeals Council letter; and

d) attach a copy of the Appeals Council letter to his amended complaint.

If Plaintiff has not exhausted his administrative remedies, he must include facts showing

that his failure to exhaust his administrative remedies should be excused. Because Plaintiff’s

amended complaint will completely replace, not supplement, the original complaint, any facts or

claims that Plaintiff wishes to maintain must be included in the amended complaint.

CONCLUSION

Plaintiff is granted leave to file an amended complaint that complies with the standards

set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit

within sixty days of the date of this order, caption the document as an “Amended Complaint,”

and label the document with docket number 20-CV-2015 (LLS). An Amended Social Security

Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to

comply within the time allowed and cannot show good cause to excuse such failure, the

complaint will be dismissed for failure to state a claim upon which relief may be granted.

In light of the current global health crisis, parties proceeding pro se are encouraged to

submit all filings by email to Temporary Pro Se Filing@nysd.uscourts.gov. Pro se parties also

are encouraged to consent to receive all court documents electronically. A consent to electronic

service form is available on the Court’s website. Pro se parties who are unable to use email may

submit documents by regular mail or in person at the drop box located at the U.S. Courthouses in

Manhattan (500 Pearl Street) and White Plains (300 Quarropas Street). For more information,

including instructions on this new email service for pro se parties, please visit the Court’s

website at nysd.uscourts. gov.

SO ORDERED.

Dated: May 5, 2020

New York, New York Leis Lo Staaten

Louis L. Stanton

U.S.D.J.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Write your full name.

_____CV_______________

Include case number only if one has been

assigned.

-against-

COMMISSIONER OF SOCIAL SECURITY

COMPLAINT FOR JUDICIAL REVIEW OF A FINAL DECISION OF THE

COMMISSIONER OF SOCIAL SECURITY

The plaintiff respectfully alleges:

1. This is an action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), or

section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), for review of a final

decision of the Commissioner of Social Security.

2. This case is properly brought in the Southern District of New York because the

plaintiff is a resident of the county of

and the State of

or (optional)

has a principal place of business in the county of

and the State of

3. The plaintiff’s social security number is

4. The defendant is the Commissioner of the Social Security Administration and has full

power and responsibility over Social Security and Supplemental Security Income

benefit determinations under the Social Security Act.

5. The Social Security Administration issued an unfavorable decision regarding the

plaintiff’s application for, or eligibility to receive, benefits under Title XVI of the Social

Security Act (SSI - Supplemental Security Income) or Title II of the Social Security Act

(Disability Insurance, Retirement, or Survivors benefits).

6. The plaintiff requested a hearing before an Administrative Law Judge, a hearing was

held, and the Administrative Law Judge issued a decision denying the plaintiff's

claim, by decision dated (date of Administrative Law Judge decision)

7. The plaintiff requested a review, and the Appeals Council denied the plaintiff's

request, or otherwise issued an unfavorable decision, on

(date of Appeals Council letter) , making the Administrative

Law Judge’s decision the “final decision” of the Commissioner, subject to judicial

review under 42 U.S.C. § 405(g) or § 1383(c)(3).

8. The plaintiff received the letter from the Appeals Council on

(date of receipt of letter)

IMPORTANT

Please attach a copy of the Appeals Council’s letter to this complaint.

You may file this complaint even if you do not have the Appeals Council letter or cannot answer

all of the questions, but you may be required later to provide the missing information.

9. The Commissioner’s decision was not supported by substantial evidence in the

record, or was based on legal error.

WHEREFORE, the plaintiff respectfully requests that the Court:

a) direct the defendant to appear before the Court;

b) order the defendant to submit a certified copy of the administrative record,

including the evidence upon which the findings and decisions complained of are

based;

c) upon such record, modify or reverse the decision of the defendant and grant the

plaintiff maximum monthly Social Security benefits or Supplemental Security

Income benefits as allowable under the Social Security Act; and

d) grant such other relief as may be just and proper.

Page 2

PLAINTIFF’S CERTIFICATION

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported

by existing law or by a nonfrivolous argument to change existing law; (3) the factual

contentions have evidentiary support; and (4) the complaint otherwise complies with the

requirements of Federal Rule of Civil Procedure 11.

I agree to provide the Clerk's Office with any changes to my address. I understand that my

failure to keep a current address on file with the Clerk’s Office may result in the dismissal

of my case.

You must sign and date the complaint. Attach additional pages if necessary. You must also either

pay the filing fee or submit an application to proceed without prepayment of fees.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Plaintiff's Address

County, City State Zip Code

Telephone Number Email Address (if available)

Ihave read the attached Pro Se (Nonprisoner) Consent to Receive Documents

Electronically:

L]Yes LINo

If you do consent to receive documents electronically, submit the completed form with your

complaint. If you do not consent, please do not attach the form.

Page 3

Gn

[5 vy 4) United States District Court

eee) Southern District of New York

ID OS

Sister y

Pro Se (Nonprisoner) Consent to Receive Documents Electronically

Parties who are not represented by an attorney and are not currently incarcerated may

choose to receive documents in their cases electronically (by e-mail) instead of by regular

mail. Receiving documents by regular mail is still an option, but if you would rather receive

them only electronically, you must do the following:

1. Sign up for a PACER login and password by contacting PACER! at

www.pacer.uscourts.gov or 1-800-676-6856;

2. Complete and sign this form.

If you consent to receive documents electronically, you will receive a Notice of Electronic

Filing by e-mail each time a document is filed in your case. After receiving the notice, you

are permitted one “free look” at the document by clicking on the hyperlinked document

number in the e-mail.* Once you click the hyperlink and access the document, you may not

be able to access the document for free again. After 15 days, the hyperlink will no longer

provide free access. Any time that the hyperlink is accessed after the first “free look” or the

15 days, you will be asked for a PACER login and may be charged to view the document. For

this reason, you should print or save the document during the “free look” to avoid future

charges.

IMPORTANT NOTICE

Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s

Electronic Case Filing Rules & Instructions, documents may be served by electronic means.

If you register for electronic service:

1. You will no longer receive documents in the mail;

2. Ifyou do not view and download your documents during your “free look” and

within 15 days of when the court sends the e-mail notice, you will be charged for

looking at the documents;

3. This service does not allow you to electronically file your documents;

4. It will be your duty to regularly review the docket sheet of the case.

1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that

allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER

Case Locator over the internet.

2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone.

See ECF Rule 4.3

3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of

electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s

Office at the Court.

500 PEARL STREET | NEW YORK, NY 10007

300 QUARROPAS STREET | WHITE PLAINS, NY 10601

CONSENT TO ELECTRONIC SERVICE

I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I

affirm that:

1. I have regular access to my e-mail account and to the internet and will check regularly for

Notices of Electronic Filing;

2. I have established a PACER account;

3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil

Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper

copies of case filings, including motions, decisions, orders, and other documents;

4. I will promptly notify the Court if there is any change in my personal data, such as name,

address, or e-mail address, or if I wish to cancel this consent to electronic service;

5. I understand that I must regularly review the docket sheet of my case so that I do not miss a

filing; and

6. I understand that this consent applies only to the cases listed below and that if I file

additional cases in which I would like to receive electronic service of notices of documents, I

must file consent forms for those cases.

Civil case(s) filed in the Southern District of New York:

Note: This consent will apply to all cases that you have filed in this court, so please list all of

your pending and terminated cases. For each case, include the case name and docket number

(for example, John Doe v. New City, 10-CV-01234).

Name (Last, First, MI)

Address City State Zip Code

Telephone Number E-mail Address

Date Signature

Return completed form to:

Pro Se Intake Unit (Room 200)

500 Pearl Street

New York, NY 10007

New York

County Lawyers

Association

Social Security

SDNY Project

Pro Bono Programs

To all individuals who have Social Security or

Supplemental Security Income cases:

The New York County Lawyers Association has provided free

legal assistance to thousands of people who cannot afford

lawyers. If you cannot afford a lawyer, you may qualify for

free legal representation in your appeal in the Southern

District of New York.

If you would like to consult with a lawyer, please call Carolyn

A. Kubitschek, at (212) 349-0900. We cannot promise that

everyone who calls will get a lawyer, but we are committed to

providing as many individuals as possible with free legal

representation in their federal appeals.

Sincerely,

the Mn 2a Ars ‘i

Anthe Maria Bova

General Counsel & Director of Pro Bono Programs