BURNS v. CONGER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KEVIN BURNS,

Plaintiff,

v. Case No. 1:25cv51-MW-HTC

THOMAS CONGER, et al.,

Defendants.

________________________/

ORDER and

REPORT AND RECOMMENDATION

Plaintiff Kevin Burns has filed a civil rights complaint against two

psychologists who provided evaluations for his 2018 application for child disability

insurance benefits. Doc. 1. He also filed a motion to proceed in forma pauperis.

Doc. 2. Upon consideration, the undersigned finds Burns’ complaint should be

DISMISSED WITH PREJUDICE as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i)1

for the following reasons: (1) a Bivens2 remedy is not available against the Defendant

psychologists; (2) any such claims would be barred by the statute of limitations; and

1 The undersigned notes Burns has filed eight cases with the Court within the past month. In

addition, Burns has previously filed cases with the Court that were dismissed as frivolous or for

failure to state a claim. See Burns v. Gooldin, Case No. 1:24cv68-AW-MAF (N.D. Fla. June 24,

2024) (dismissed as frivolous); Burns v. United States, Case No. 4:22cv1-MW-MAF (N.D. Fla.

May 26, 2022) (dismissed for failure to state a claim and as barred by the statute of limitations);

see also Bilal v. Driver, 251 F.3d 1346, 1350 (11th Cir. 2001) (“On the question of frivolousness,

a litigant’s history of bringing unmeritorious litigation can be considered.”) (citations omitted).

2 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

(3) the Court previously reviewed the denial of Burns’ application for benefits.

Because the action is frivolous, the motion to proceed in forma pauperis, Doc. 2,

will be DENIED.

I. Background

Burns sues Thomas Conger, Ph.D., and James A. Brown, Ph.D. He alleges in

September 2018, Dr. Conger incorrectly claimed there was no medical evidence

from March 20, 2002, to March 19, 2006, to support his child disability insurance

benefit claim. Similarly, Burns alleges Dr. Brown overlooked medical records

relevant to his claim in November 2018. He asserts the doctors violated his rights

under the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments,

as well as Social Security rules and federal law related to providing false documents

to the Social Security Administration. As relief, he asks to be awarded “adult child

benefits” dating back to March 2002.

II. Legal Standard

Because Burns seeks to proceed in forma pauperis, the Court must dismiss

his complaint, or any portion thereof, if it determines it 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. See 28 U.S.C. § 1915(e)(2)(B). To

state a claim, Burns must plead factual content which allows the Court to draw the

reasonable inference the Defendants are liable for the misconduct alleged. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). The Court must liberally construe Burns’ pro se

allegations, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but conclusory

allegations and legal conclusions couched as factual allegations are not entitled to a

presumption of truth. Iqbal, 556 U.S. at 681; Papasan v. Allain, 478 U.S. 265, 286

(1986).

III. Discussion

Burns’ claims are frivolous for at least three reasons. First, the Defendant

psychologists cannot be sued under Bivens. In Schweiker v. Chilicky, the Supreme

Court held a Bivens action could not be maintained against government officials who

administered the federal Social Security program for the improper denial of benefits.

487 U.S. 412, 424, 429 (1988) (noting “Congress is the body charged with making

the inevitable compromises required in the design of a massive and complex welfare

benefits program” and the Social Security Act “makes no provision for remedies in

money damages against officials responsible for unconstitutional conduct that leads

to the wrongful denial of benefits”); Horne v. Soc. Sec. Admin., 359 F. App’x 138,

143 (11th Cir. 2010) (“The Supreme Court has declined to imply a Bivens remedy

for monetary damages for people improperly denied social security benefits.”).

Because Congress provided Burns with alternative means to remedy his complaints

about the processing of his disability application—and, as discussed below, Burns

availed himself of those alternative remedies—Drs. Conger and Brown cannot be

sued under Bivens.3

Second, even if Drs. Conger and Brown could be sued under Bivens, Burns’

claims against them would be barred by the statute of limitations. Burns complains

about disability evaluations Drs. Conger and Brown performed in 2018 at the initial

and reconsideration levels of the disability application process, and there is nothing

suggesting Burns did not know about the evaluations either shortly after they were

completed or, at the latest, when the administrative law judge issued his unfavorable

decision on August 12, 2020. See Burns v. Kijakazi, Case No. 4:20cv541-WS-HTC.

Because a four-year statute of limitations applies to Burns’ claims, see Erick v.

Border Patrol of Fla. State, 154 F. App’x 193, 194-95 (11th Cir. 2005), and he did

not file this case until February 18, 2025, his claims are barred by the statute of

limitations.

Finally, to the extent Burns seeks judicial review of the Commissioner’s

decision denying his application for child disability insurance benefits, the Court

3 Burns does not specify in his complaint whether Drs. Conger and Brown are federal employees

or private contractors. However, in either scenario, the Bivens remedy would not extend to them

since disability claimants have alternative remedies available. See Minneci v. Pollard, 565 U.S.

118 (2012) (holding a Bivens claim could not be asserted against privately employed personnel

working at a privately operated federal prison because state tort law provided an alternative

remedy). In addition, Burns checked a box indicating he was suing Dr. Conger in his official

capacity. However, plaintiffs cannot bring Bivens actions against officials in their official

capacities. See Horne, 359 F. App’x at 143 (“While a plaintiff may bring a Bivens action against

a federal officer in his individual capacity, a plaintiff may not bring a Bivens action against a

federal agency or a federal officer acting in his official capacity.”) (citations omitted).

previously reviewed that decision and affirmed the denial. See Burns v. Kijakazi,

Case No. 4:20cv541-WS-HTC, 2022 WL 774046 (N.D. Fla. Jan. 3, 2022), report

and recommendation adopted, 2022 WL 769212 (N.D. Fla. Mar. 14, 2022). Burns

then filed an appeal, and the Eleventh Circuit affirmed this Court’s decision. See

Burns v. Comm’r, Soc. Sec. Admin., 2023 WL 5607883 (11th Cir. Aug. 30, 2023).

Thus, any attempt by Burns to seek further review of the decision denying his

application for child disability insurance benefits is barred by the doctrine of res

judicata. See I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549 (11th

Cir. 1986) (“Res judicata or claim preclusion refers to the preclusive effect of a

judgment in foreclosing relitigation of matters that were litigated or could have been

litigated in an earlier suit.”) (citations omitted).

Based on the foregoing, Burns’ claims are frivolous and should be dismissed

with prejudice.4 See Cornelius v. Bank of America, NA, 585 F. App’x 996, 1000

(11th Cir. 2014) (“While a pro se litigant generally must be given at least one

opportunity to amend his complaint, a district judge need not allow an amendment

where amendment would be futile.”) (citation omitted).

Finally, because Burns has no viable claim, his motion to proceed in forma

pauperis is also denied. See e.g., Romagnano v. Byrd, No. 3:23cv8294-TKW-HTC,

4 On February 20, 2025, Burns filed a document titled “Motion to Added.” Doc. 4. The

undersigned has reviewed the document and finds it has no effect on the conclusions reached in

this Report and Recommendation.

2023 WL 3466656, at *3 (N.D. Fla. Apr. 28, 2023), report and recommendation

adopted, 2023 WL 3457879 (N.D. Fla. May 15, 2023), appeal dismissed, No. 23-

11687-A, 2024 WL 2229284 (11th Cir. Jan. 9, 2024); Reardon v. Institutional

Leasing LLC, 2012 WL 13042665, at *1 (S.D. Fla. Mar. 6, 2012) (“the Court can

deny a motion to proceed in forma pauperis and dismiss the action if the claims in

the underlying complaint are frivolous or fail to state a claim on which relief may be

granted”); see also Davis v. CitiMortgage, Inc., 2012 WL 13134242, at *1 (N.D. Ga.

Jan. 9, 2012) (recommending that plaintiff’s motion for in forma pauperis status be

denied “because, having reviewed the complaint in this action with deference to the

fact that Plaintiff is attempting to appear pro se, the federal claim set forth in the

complaint is frivolous and/or fails to state a claim for relief, and repleader would be

futile against the named Defendant”), report and recommendation adopted, 2012

WL 13134244 (N.D. Ga. Feb. 2, 2012).

Accordingly, it is ORDERED:

1. Burns’ motion to proceed in forma pauperis, Doc. 2, is DENIED.

And it is RECOMMENDED:

1. That this case be DISMISSED WITH PREJUDICE as frivolous under

28 U.S.C. § 1915(e)(2)(B)(i).

2. That the Clerk close the file.

At Pensacola, Florida, this 20th day of February, 2025.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within

fourteen (14) days of the date of the Report and Recommendation.  Any different

deadline that may appear on the electronic docket is for the court’s internal use only

and does not control.  An objecting party must serve a copy of its objections upon all

other parties.  A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the right to

challenge on appeal the district court’s order based on the unobjected-to factual and

legal conclusions.  See 11th Cir. Rule 3-1.