Chapman v. Colvin
ORDERED that Plaintiff file an Amended Complaint within 21 days from the date this Order is served. ( Compliance due by 2/27/2017.) Signed by Magistrate Judge G. R. Smith on 1/27/17. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
JACQUELINE E. CHAPMAN,
CAROLYN L. COLVIN, Acting
Commissioner of Social Security,
[I) 1 I) DI
Proceeding pro se, Jacqueline Chapman has filed a complaint
asking the Court to review the denial of her social security disability
claim. Doe. 1. The Court now preliminarily screens plaintiffs'
District courts have the inherent power to dismiss sua sponte frivolous lawsuits,
even those where the plaintiff pays the required filing fee. See Cuyler v. Aurora Loan
Services, LLC, 2012 WL 10488184 at * 2 (11th Cir. 2012) (notwithstanding filing fee
payment, "a district court has the inherent authority to dismiss a patently frivolous
complaint"); Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d
524, 526 n. 3 (11th Cir. 1983) (noting that courts may sua sponte dismiss actions for
lacking merit "if the proper procedural steps are taken and if the determination is
correct on the merits"); Wilkerson v. Georgia, 2014 WL 3644179 at * 1 (S.D. Ga. July
21, 2014) (dismissing pro se complaint on frivolity grounds even though plaintiff paid
full filing fee), rev'd on other grounds 618 F. App'x 610 (11th Cir. 2015). Chapman,
Chapman doesn't provide the Court with much. She complains
that on the
2nd appeal Judge agreed going forward. Attorney advised to
reject and go back to beginning of claim. To accept last denial
seemed wrong to me.
Doc. 1 at 3. However, she also attached the "Notice" of denial of review
by the Social Security Administration's Appeals Council (doc. 1-1),
demonstrating at least that an adverse decision was made on her
request for either (or both) Disability Insurance Benefits, 42 U.S.C.
§ 405, or Supplemental Security Income, Id. at §§ 1381-1383.
The Notice is dated July 8, 2016, and warned plaintiff that she
had 60 days to seek judicial review of the denial, "start[ing] the day
after you receive this letter." Doc. 1-1 at 2. It further warned her that
it was "assume[d] [she] received this letter 5 days after the date on it
unless you show us that you did not receive it within the 5-day period."
It provided that an extension on time to file was available by
request directly to the Appeals Council.
Id. at 3. Plaintiff filed her
by the way, is obliged to finish paying her court-ordered, $200 filing fee
notwithstanding this Court's rulings on the disposition of this case.
Complaint on October 18, 2016, 102 clays after the Notice date. Doc. 1;
id. at 5 (signed October 18, 2016). She did not allege that she
requested (or received) an extension of time from the Appeals Council.
II. GOVERNING STANDARDS
Under the Social Security Act, a claimant is entitled to disability
insurance benefits if she is "disabled" due to a physical or mental
42 U.S.C. § 423(d)(1). A claimant may
administratively dispute the Commissioner's adverse benefits
determination at two levels, first through review by an administrative
law judge and then through review by the Appeals Council. 20 C.F.R.
§ § 404.900(a)(3), (4). After that, she may seek judicial review by filing
a complaint in the appropriate federal district court.
§ 404.900(a)(5); 42 U.S.C. § 405(g).
A claimant may only proceed in the district court, however, if her
civil action is "commenced within sixty days after the mailing to [her] of
notice" of "any final decision of the Commissioner of Social Security
made after a hearing to which [she] was a party" or "within such further
time as the Commissioner of Social Security may allow." 42 U.S.C.
§ 405(g); see also Bowen v. City of New York, 476 U.S. 467, 478-79
(1986) (the 60-day time period is not jurisdictional but is instead a
statute of limitations that operates as a waiver of sovereign immunity).
"[T]he date of receipt of. . . notice of the decision by the Appeals Council
shall be presumed to be 5 days after the date of such notice, unless
there is a reasonable showing to the contrary."
Id.; accord 20 C.F.R.
§ 404.901 ("Date you receive notice means 5 days after the date on the
notice, unless you show us that you did not receive it within the 5-day
period"). The 60-day period "may be extended by the Appeals Council
upon a showing of good cause." 20 C.F.R. § 422.2 10(c).
Here, the Appeals Council's notice of decision denying Chapman's
request for review was dated July 8, 2016. Unless there is a reasonable
showing to the contrary, Chapman is presumed to have received the
notice five days later on July 13, 2016.
See 20 C.F.R. §§ 404.901,
422.210(c); see also Hatchell v. Heckler, 708 F.2d 578, 579 (11th Cir.
1983) (explaining that "[t]he date of receipt is presumed to be five days
after mailing unless there is a reasonable showing to the contrary").
She therefore had 60 days from July 13, 2016 (hence, September 12,
2016), 2 to file her Complaint in federal district court. She did not do so,
however, until October 18, 2016. Her action appears to be time-barred.
The Court, however, cannot determine whether plaintiff sought
(and received) an extension of time to seek judicial review from the
Appeals Council as directed in their Notice. Given her pro se status,
and in view of Fed. R. Civ. P. 15(a)'s admonition to give leave freely
"when justice so requires," the Court will give Chapman another chance
to explain both the facts surrounding her claim and demonstrate that
her Complaint is timely. She therefore must file a curative, Amended
To that end, her Amended Complaint will supersede her original
Complaint, so it must be complete in itself.
See Malowney v. Fed.
Collection Deposit Grp, 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) ("An
amended complaint supersedes an original complaint"); Varnes v. Local
91, Glass Bottle Blowers Ass'n of U.S. & Canada,
674 F.2d 1365, 1370
n.6 (11th Cir. 1982) ("As a general rule, an amended complaint
supersedes and replaces the original complaint unless the amendment
The 60-day period elapsed on Sunday, September 11, 2016. Plaintiff therefore had
until following Monday (September 12th) to file her Complaint seeking judicial
review. 42 U.S.C. § 405(g).
specifically refers to or adopts the earlier pleading"). Once she files an
Amended Complaint, her original pleading will no longer serve any
function in this case other than establishing a filing-date benchmark.
In her Amended Complaint, Plaintiff must sufficiently allege facts
demonstrating both that (1) her Complaint was filed within 60 days of
receipt of the letter or that she received permission to file it late; and
(2) she is entitled to relief. 3 If Plaintiff fails to file an Amended
Complaint within 21 days from the date this Order is served, or fails to
cure the deficiencies identified above, the Court will recommend that
the Complaint be dismissed with prejudice.
SO ORDERED, this 27th day of January, 2017.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
To demonstrate entitlement to relief, plaintiff must set forth: (1) a short, plain
description of her alleged physical or emotional impairments, when she contends they
became disabling, and how the impairments prevent her from working; (2) a
summary of the administrative proceedings before the Social Security
Administration; and (3) a short, separate statement of each of her legal claims
explaining why the evidence does not support the Social Security Administration's
findings and denial of benefits.
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