Pittman v. Colvin

Filing 13

MEMORANDUM OPINION AND ORDER that this case be and hereby is DISMISSED with prejudice as further set out in the opinion and order. Signed by Honorable Judge Terry F. Moorer on 5/6/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMMY PITTMAN OBO,
T.R.H., A MINOR,

)
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
)
Defendant.
)

CASE NO. 1:13-cv-856-TFM
[wo]

MEMORANDUM OPINION AND ORDER
On November 22, 2013, Plaintiff filed a pro se complaint with this Court seeking
Social Security Benefits. On January 8, 2012, the Court Ordered the Commissioner to
answer the Complaint within ninety days after service and for the Plaintiff to file a brief
in support forty days after the filing of the answer. (Doc. 3). On April 7, 2014, the
Commissioner filed a motion to dismiss. (Doc. 11). The Court issued a show cause
order making Plaintiff’s response due on April 21, 2014. (Doc. 12). The Plaintiff failed,
however, to file her response to the motion to dismiss as directed by this Court’s Order.
Pursuant to 28 U.S.C. § 636 (c), the parties have consented to entry of final judgment by
the United States Magistrate Judge. (Docs. 9 and 10). Judicial review proceeds pursuant
to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c).
On July 18, 2013, the Appeals Council notified Plaintiff of its denial of Plaintiff’s
request for review of the administrative law judge’s (“ALJ”) decision denying her
application for supplemental security income under Title XVI of the Social Security Act.

See Declaration of Patrick J. Herbst, Chief of Court Case Preparation and Review Branch
3, Office of Disability Adjudication and Review, Social Security Administration, dated
February 14, 2014. (Doc. 11; Declaration, Ex. 1). The July 18, 2013 notice also advised
Plaintiff of her right to commence a civil action within sixty (60) days from the date of
receipt. This action by the Appeals Council rendered the ALJ’s decision the “final
decision” of the Commissioner of Social Security, see 20 C.F.R. '' 404.981, 416.1481,
422.210(a) (2011), giving rise to judicial review within 60 days of receipt of notice of the
action pursuant to section 205(g) of the Act, 42 U.S.C. ' 405(g).
Based on this date, Plaintiff must have commenced her civil action on or before
September 23, 2013 to be considered timely. However, Plaintiff’s complaint was not
filed until November 22, 2013. (Doc. 1). In addition, there is no record that Plaintiff filed
a request for extension of time to file a civil action as specified in the Appeals Council
notice. (Doc. 11; Declaration, Ex 1).
It is well settled that “[t]he United States, as sovereign, ‘is immune from suit save
as it consents to be sued, and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981)
(quoting United States v. Testan, 424 U.S. 392, 399 (1976) and United States v.
Sherwood, 312 U.S. 584, 586-87 (1941)). Congress may prescribe the procedures and
conditions under which, and the courts in which, judicial review of administrative orders
may be obtained. See Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958).
Judicial review of final decisions on Title II and Title XVI claims is provided for and
limited by 42 U.S.C. ' 405 (g) and (h) as follows: an individual “may obtain a review of
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such decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner [] may allow.[]
No findings of fact or decision of the Commissioner []shall be reviewed by any person,
tribunal, or governmental agency except as herein provided.”
The complaint fails to state a claim upon which relief can be granted because it
was not filed within 60 days after the presumptive receipt of notice by Plaintiff of the
Commissioner’s final decision or within further time allowed by the Commissioner
through the Appeals Council. See 20 C.F.C. '416.1515(b)(“A notice or request sent to
your representative, will have the same force and effect as if it had been sent to you.”).
The Declaration of Patrick J. Herbst affirmatively establishes that this civil action is
untimely because it contains the date the notice of the Commissioner’s final decision was
mailed to Plaintiff. (Doc. 11; Declaration, Ex 1).
The United States Supreme Court has held that the 60-day period set out in '405
(g) is a period of limitation which in a rare case can be tolled by the Commissioner or the
courts. See Bowen v. City of New York, 476 U.S. 467, 480 (1986). The Eleventh Circuit
has likewise held that equitable tolling of the statute of limitations should only be applied
in extraordinary circumstances, such as fraud, misinformation, or deliberate
circumstances. See Jackson v. Astrue, 506 F. 3d 1349, 1355 (11th Cir. 2007). Here the
Declaration establishes that Plaintiff did not file for judicial review within 60 days as
required by 42 U.S.C. ' 405 (g).

Also, there is no evidence of any extraordinary

circumstances which would justify extending the 60-day period in this case. (Doc. 11;
Declaration, Ex 1).
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Furthermore, under Rule 41 of the Federal Rules of Civil Procedure, a court may
dismiss an action “[f]or failure of the plaintiff to prosecute or to comply with these rules
or any order of court.” Fed. R. Civ. P. 41(b). As the Supreme Court recognized in Link
v. Wabash R. Co., “[t]he power to invoke this sanction is necessary in order to prevent
undue delays in the disposition of pending cases and to avoid congestion in the calendars
of the District Courts.” 370 U.S. 626, 629-630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734
(1962).

Nonetheless, the “severe sanction of a dismissal or default judgment is

appropriate only as a last resort, when less drastic sanctions would not ensure compliance
with the court's orders.” Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th
Cir.1993) (citing Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.1988)).
Mindful of the judicial caution which should attend the dismissal of pro se actions,
dismissal of this action is appropriate as Plaintiff has been provided more than a
reasonable opportunity to prosecute this action. Indeed, the Court issued a show cause
order on April 7, 2014 as to whether the Defendant’s motion to dismiss was due to be
granted (Doc. 12) and Plaintiff has failed to respond.

Thus, Plaintiff has failed to

demonstrate any facts which might justify application of the strict equitable tolling
standard in this instance. Furthermore, Plaintiff has failed to prosecute this case as
required by Fed. R. Civ. P. 41(b). Accordingly, it is
ORDERED that this case be and hereby is DISMISSED with prejudice.

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DONE this 6th day of May, 2014.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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