Thompson v. Social Security Administration

Filing 5

PROPOSED FINDINGS AND RECOMMENDATIONS that Plaintiff's complaint be dismissed without prejudice for failure to state a claim upon which relief may be granted 2 . The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pau peris appeal from an order adopting these recommendations and the accompany judgment would not be taken in good faith. Objections due no later than 14 days from the date of the findings and recommendations. Signed by Magistrate Judge Joe J. Volpe on 3/7/2018. (lej)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RAYMOND D. THOMPSON
v.

PLAINTIFF
4:18cv00128-JLH-JJV

UNITED STATES OF AMERICA
SOCIAL SECURITY ADMINISTRATION (SSA):
SSA Administrative Law Judge Bradley L. Davis

DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge J.
Leon Holmes.

Any party may serve and file written objections to this recommendation.

Objections should be specific and should include the factual or legal basis for the objection. If the
objection is to a factual finding, specifically identify that finding and the evidence that supports
your objection. An original and one copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen (14) days from the date of the findings
and recommendations. The copy will be furnished to the opposing party. Failure to file timely
objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or
additional evidence, and to have a hearing for this purpose before the District Judge, you must, at
the same time that you file your written objections, include the following:
1.

Why the record made before the Magistrate Judge is inadequate.

2.

Why the evidence proffered at the hearing (if such a hearing is granted) was not

offered at the hearing before the Magistrate Judge.

3.

The details of any testimony desired to be introduced at the new hearing in the form

of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional
evidentiary hearing. Mail your objections and “Statement of Necessity” to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
DISPOSITION
I.

INTRODUCTION
Raymond D. Thompson (“Plaintiff”) filed this action pro se pursuant to 42 U.S.C. § 1983,

alleging the Social Security Administration (SSA) and Administrative Law Judge (ALJ) Bradley
L. Davis have violated his constitutional right to due process. (Doc. No. 2.) Plaintiff seeks
damages in the form of being awarded monthly disability benefits and “equity/damages . . . to
include the cost of the litigation of this cause of action.” (Id. at 13.) After careful review of
Plaintiff’s Complaint, I find it should be dismissed without prejudice for failure to state a claim
upon which relief may be granted.
II.

SCREENING
An action in which the plaintiff is proceeding in forma pauperis may be dismissed “at any

time” upon a determination that (1) it is frivolous or malicious; (2) it fails to state a claim on which
relief may be granted; or (3) it seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B). Pursuant to this provision, a federal court may sua sponte
dismiss a claim that is “based on an indisputably meritless legal theory” or one that is “clearly
baseless” as a matter of fact. Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke v.
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Williams, 490 U.S. 319, 327 (1989)). The in forma pauperis statute has been applied to dismiss
claims prior to service in prisoner and non-prisoner cases alike. See Zessin v. Neb. Health &
Human Servs., 8:07CV247, 2007 WL 2406967 (D. Neb. Aug. 20, 2007) (collecting cases in which
the Eighth Circuit and other courts have affirmed dismissals under 28 U.S.C. § 1915(e)(2)(B) in
non-prisoner cases).
III.

ANALYSIS
Plaintiff was denied disability insurance benefits and supplemental security income on

February 5, 2018. (Doc. No. 2 at 31-41.) Judge Bradley L. Davis held an administrative hearing
and entered a written decision denying benefits. (Id.) Plaintiff was notified that if he disagreed
with the ALJ’s decision, he could seek review of the decision by the Appeals Council. (Id. at 28.)
There is no indication (and it is unlikely given the February 14, 2018, Complaint) Plaintiff
exhausted an appeal with the Appeals Council before filing this cause of action.
Nevertheless, rather than pursue review by the Appeals Council or judicial review pursuant
to 42 U.S.C. § 405(g), Mr. Thompson seeks relief through 42 U.S.C. § 1983. After careful review
of Plaintiff’s Complaint, I find it is subject to dismissal for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted.
As an initial matter, Judge Davis enjoys absolute immunity from this lawsuit for damages
because Plaintiff’s claims are clearly based on actions taken in his official capacity. Rehberg v.
Paulk, 566 U.S. 356, 363 (2012); Butz v. Economou, 438 U.S. 478, 514 (1978). Therefore, Judge
Davis should be summarily dismissed from this cause of action.
The United States is also immune from suit unless it expressly has waived immunity and
consents to be sued. See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980). “It is
elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be

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sued . . . , and the terms of its consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
An action brought against a federal agency - the SSA in this case - is essentially one brought
against the United States. Therefore, the SSA cannot be sued absent an express waiver of that
immunity. Likewise, the Commissioner cannot be sued absent an express waiver, for sovereign
immunity applies with equal force to suits against a federal employee sued in his or her official
capacity. Hawaii v. Gordon, 373 U.S. 57, 58 (1963).
A limited waiver of sovereign immunity permitting review of the denial of social security
disability exists in 42 U.S.C. § 405(g). The statute, in pertinent part, states, “Any individual after
any final decision of the Commissioner made after a hearing to which he was a party, . . . , may
obtain judicial review of such decision by a civil action. . . .”). So consideration must be given to
whether Mr. Thompson should be allowed to proceed with this cause of action by converting it to
an appeal under § 405(g).
In considering this question, I note Mr. Thompson may only seek judicial review of the
Commissioner’s “final decision,” 42 U.S.C. § 405(g) and (h), and a “final decision” comes only
after a claimant has sought review by the Appeals Council. See 20 C.F.R. §§ 416.1455 and
416.1481. Here, Mr. Thompson filed this cause of action less than two weeks after receiving notice
of the unfavorable decision by the ALJ. In the absence of a decision by the Appeals Council, there
has been no “final decision” by the Commissioner, and, therefore, no decision subject to judicial
review under 42 U.S.C. § 405(g). Plaintiff’s failure to exhaust his available administrative
remedies is jurisdictional, requiring dismissal of this cause of action. Weinberger v. Salfi, 422
U.S. 749 (1975) (requirement of “final decision” of Commissioner is jurisdictional).

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I also recognize that in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the United States Supreme Court allowed § 1983 suits as a means
to seek damages against federal officials who violate an individual’s constitutional rights in their
individual capacities. However, Mr. Thompson’s claims are clearly those of official capacity.
Even giving Mr. Thompson all benefit of the doubt, his Fourteenth Amendment due
process claims are not cognizable under Bivens. The United States Supreme Court recently
addressed what claims were cognizable through a claim under Bivens. The Court stated:
[T]he Court recognized what has come to be called an implied cause of action in
two cases involving other constitutional violations. In Davis v. Passman, 442 U.S.
228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), an administrative assistant sued a
Congressman for firing her because she was a woman. The Court held that the Fifth
Amendment Due Process Clause gave her a damages remedy for gender
discrimination. Id., at 248-249, 99 S.Ct. 2264. And in Carlson v. Green, 446 U.S.
14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a prisoner’s estate sued federal jailers
for failing to treat the prisoner’s asthma. The Court held that the Eighth Amendment
Cruel and Unusual Punishments Clause gave him a damages remedy for failure to
provide adequate medical treatment. See id., at 19, 100 S.Ct. 1468. These three
cases—Bivens, Davis, and Carlson—represent the only instances in which the
Court has approved of an implied damages remedy under the Constitution itself.
Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1854-55 (2017).
Because the Supreme Court has only recognized a Bivens remedy in the context of the
Fourth, Fifth, and Eighth Amendments, Plaintiff’s Fourteenth Amendment claim would present a
new Bivens context. Therefore, in accordance with Ziglar, this Court would necessarily apply a
“special factors” analysis to determine whether “special factors counsel hesitation in the absence
of affirmative action by Congress.” Id. at 1857 (citation and quotations omitted). In other words,
are there special factors here requiring this Court - which interprets laws - to defer to those who
wrote those laws.
In performing this analysis, “the existence of alternative remedies usually precludes a court
from authorizing a Bivens action.” Id. at 1865. Plaintiff’s “alternative remedy” is under the Social
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Security Act, 42 U.S.C. § 405(g). Section 405(g) provides that a federal court, reviewing a final
decision of the Commissioner, has the power to enter a judgment “affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g)(sentence four). Since § 405(g) “creates a right and
provides a special remedy, that remedy is exclusive.” Renegotiation Bd. v. Bannercraft Clothing
Co., 415 U.S. 1 at 18 (1974) (other citation omitted)).
Accordingly, I find that Mr. Thompson’s Complaint should be dismissed without prejudice
for failure to state a claim upon which relief may be granted. Dismissal should be without
prejudice so Mr. Thompson may first exhaust his administrative remedies and then seek judicial
review pursuant to 42 U.S.C. § 405(g).
IV.

CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1.

Plaintiff’s Complaint (Doc. No. 2) be DISMISSED without prejudice for failure to

state a claim upon which relief may be granted.
2.

The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis

appeal from an Order adopting these recommendations and the accompanying Judgment would
not be taken in good faith.
DATED this 7th day of March, 2018.

____________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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