Carroll v. Colvin (MAG+)
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE: ORDER granting 2 MOTION for Leave to Proceed in forma pauperis; it is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED pursuant to the directives of 28 USC § 1915(e)(2)(B)(i) and (ii); Objections to R&R due by 6/6/2014. Signed by Honorable Judge Charles S. Coody on 5/23/2014. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
RICKY D. CARROLL,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
CIVIL ACT. NO. 2:14cv368-WKW
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Upon consideration of the plaintiff’s motion for leave to proceed in forma pauperis,
(doc. # 2) filed on May 19, 2014, it is
ORDERED that the motion be and is hereby GRANTED.
On May 19, 2014, pro se plaintiff Ricky D. Carroll (“Carroll”), filed this action
alleging that his social security benefits have been improperly suspended during his
The court is required to review the plaintiff’s complaint “as soon as possible,” and
dismiss the complaint if “the complaint  is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” 28 U.S.C. § 1915A(a) and (b)(1). Upon review of the
complaint filed in this case, the Court concludes that dismissal of the complaint is appropriate
under 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the court
Carroll is incarcerated at Staton Correctional Facility, in Elmore, Alabama.
shall dismiss a case proceeding in forma pauperis “at any time if the court determines that
. . . the action . . . is frivolous or . . . fails to state a claim for which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(i) and (ii). A claim is legally frivolous when it lacks an arguable
basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).2 The court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Id., at 327. See also Procup v.
Strickland, 760 F.2d 1107, 1114 (11th Cir. 1985). This section gives a federal district court
“the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those
claims whose [legal theories or] factual contentions are clearly baseless.” Neitzke, 490 U.S.
at 327. See also Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. June 16, 1981).3 Indeed,
district courts have the inherent power to sua sponte dismiss frivolous suits
without giving notice to the parties. See Jefferson v. Fourteenth Assocs.,695
F.2d at 526. Under § 1915A, a complaint is frivolous if it is “without arguable
merit either in law or fact.” Bilal, 251 F.3d at 1349. In discussing what is
frivolous in the context of 28 U.S.C. § 1915(e)(2)(B)(i), [the Eleventh Circuit]
also ha[s] held that “[a] district court may conclude a case has little or no
chance of success and dismiss the complaint before service of process when
it determines from the face of the complaint that the factual allegations
are‘clearly baseless’ or that the legal theories are ‘indisputably meritless.’”
Carroll v. Gross, 984 F.2d 392, 292 (11th Cir. 1993).
Davis v. Kvalheim, 261 Fed. Appx. 231, 234-35 (11th Cir. 2008).
Pursuant to 42 U.S.C. § 402(x)(1)(A)(i), an individual may not collect social security
Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis
contained therein remains applicable to the directives of the present statute.
See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
benefits during a period of incarceration that exceeds thirty days.4 See Treece v. Wilson, 212
Fed. Appx. 948, 952 (11th Cir. 2007) (“[B]ecause the suspension of [the plaintiff’s] old-age
benefits during his incarceration is otherwise constitutional, [the plaintiff] has no legal
entitlement to those benefits while he is incarcerated”). Thus, Carroll’s claim in this case
is frivolous and based on an indisputably meritless legal theory. In light of the foregoing,
dismissal of the plaintiff’s claim is appropriate under 28 U.S.C. § 1915(e)(2)(B)(ii). See
Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636 (11th Cir. 1990).
Consequently, the court concludes that Carroll’s claim in this action is frivolous
because it is “without arguable merit in fact or law,” and he has failed to state a claim on
which relief may be granted. Sections 1915(e) not only allows, but expressly requires,
district courts to dismiss such accusations. That federal statute provides that a district court
“shall” dismiss a complaint at any time if the court determines that the action is “frivolous
or malicious.” 28 U.S.C. § 1915(e)(2)(B).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case
42 U.S.C. § 402(x)(1)(A) limits payments of benefits to individuals during their incarceration.
(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits shall be
paid under this section or under section 423 of this title to any individual for any month
ending with or during or beginning with or during a period of more than 30 days throughout
all of which such individual-(i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to
his conviction of a criminal offense, . . .
42 U.S.C. § 402(x)(1)(A)(i).
be DISMISSED pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is
ORDERED that the parties shall file any objections to the said Recommendation on
or before June 6, 2014. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation objected to.
Frivolous, conclusive or general
objections will not be considered by the District Court. The parties are advised that this
Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge's report shall bar the party from a de novo determination by the District
Court of issues covered in the report and shall bar the party from attacking on appeal factual
findings in the report accepted or adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the
decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
Done this 23rd day of May, 2014.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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