Medeiros v. Social Security Administration

Filing 19

ORDER ADOPTING, AS MODIFIED, THE JANUARY 3, 2012 FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S THIRD APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES BE DENIED AND HIS SECOND AMENDED COMPLAINT BE DISMISSED re 16 , 14 . Signed by JUDGE ALAN C KAY on 2/27/12. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JOSHUA MEDEIROS,
Plaintiff,
vs.
UNITED STATES SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Civ. No. 11-00660 ACK-RLP

ORDER ADOPTING, AS MODIFIED, THE JANUARY 3, 2012 FINDINGS AND
RECOMMENDATION THAT PLAINTIFF’S THIRD APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES BE DENIED AND HIS SECOND AMENDED
COMPLAINT BE DISMISSED
I.

BACKGROUND1/

As the parties are familiar with the facts and
procedural history of this case, the Court will only provide a
brief overview of the proceedings most relevant to the current
issue before the Court.
On October 28, 2011, Plaintiff Joshua Medeiros,
appearing pro se, filed a complaint against Defendant Social
Security Administration (“SSA” or the “Administration”).
No. 1.)

(Docket

On the same day, Plaintiff filed an Application to

Proceed Without Prepayment of Fees.
1/

(Docket No. 3.)

On November

The facts as recited in this order are for the purpose of
resolving the instant Findings and Recommendations and are not to
be construed as findings of fact that the parties may rely on in
future proceedings in this case.
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7, 2011, Magistrate Judge Puglisi found that Plaintiff had not
alleged facts sufficient to show that he had exhausted his
administrative remedies before seeking judicial review as
required by 42 U.S.C. § 405(g), the statute that governs judicial
review of decisions by the SSA.

(Docket No. 5 at 4.)

Magistrate

Judge Puglisi recommended that Plaintiff be granted leave to file
an amended complaint after this Court’s adoption of the Findings
and Recommendation.

Id.

Plaintiff filed his Amended Complaint

and Second Application to Proceed Without Prepayment of Fees
(“Second Application”) on November 15, 2011.

(Docket Nos. 6, 7.)

After careful consideration, on November 17, 2011,
Magistrate Judge Puglisi issued an Amended Findings and
Recommendation that this Court grant Plaintiff leave to file a
Second Amended Complaint, deny Plaintiff’s Second Application to
Proceed Without Prepayment Of Fees, and grant Plaintiff leave to
file another Application if he chose to file a Second Amended
Complaint.

(Docket No. 9.)

Subsequently, on December 6, 2011,

this Court adopted Magistrate Judge Puglisi’s Findings and
Recommendation that Plaintiff be given leave to file a Second
Amended Complaint and that his Second Application To Proceed
Without Prepayment Of Fees be denied.

(Docket No. 12.)

Plaintiff filed his Second Amended Complaint on December 27,
2011.

(Docket No. 14.)

On the same day, Plaintiff filed an

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Application to Proceed Without Prepayment Of Fees.

(Docket No.

15.)
On January 3, 2012, Magistrate Judge Puglisi issued a
Findings and Recommendation that Plaintiff’s Third Application to
Proceed Without Prepayment of Fees be Denied and his Second
Amended Complaint be Dismissed (the “1/3/2012 F&R”).
16.)

(Docket No.

Judge Puglisi recommended that this Court dismiss

Plaintiff’s Second Amended Complaint without leave to amend.

Id.

On January 13, 2012, Plaintiff submitted a letter request
inquiring whether he may refile his complaint and indicating his
intent to appeal the Court’s decision.

(Docket No. 17.)

On January 17, 2012, Plaintiff filed a written
objection to the 1/3/2012 F&R (the “Objection”).
18.)

(Docket No.

Specifically, Plaintiff objected to Magistrate Puglisi’s

findings that Plaintiff had not exhausted his administrative
remedies.

Id.

Plaintiff alleged that he has been ignored by the

SSA, and that the SSA repeatedly lost Plaintiff’s documents.
The Objection contained three exhibits:

Id.

(1) a November 9, 2010

letter from the SSA addressed to Velva Medeiros,2/ informing
Velva Medeiros of the reasons why the SSA declined to waive
collection of overpayment of Social Security, and advising her of
the 60 day time limit to ask for a hearing to contest the

2/

In his Amended Complaint, Plaintiff identifies his
representative payee for social securities benefits as his
grandmother.
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decision (unless she can show good reason for waiting more than
60 days); (2) Plaintiff’s written request for a hearing by an
Administrative Law Judge, dated November 18, 2011; and (3) a
March 28, 2007 letter from the SSA informing Plaintiff of an
overpayment of Supplemental Security Income money in January
2005, providing information about repaying the amount or
alternatively appealing the decision.

(See Docket No. 18, Exs.

1-3.)3/
II.
A.

STANDARD OF REVIEW

Review of Magistrate Judge’s Findings & Recommendation
A district court reviews de novo those portions of a

magistrate judge’s findings and recommendation to which an
objection is made and may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the magistrate
judge.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); D. Haw.

Local Rule 74.2.
The district court may accept those portions of the
findings and recommendation that are not objected to if it is
3/

Plaintiff has also filed a separate complaint in Medeiros
v. Social Security Administration, Civ. No. 12-00026 JMS-KSC,
naming Equifax Credit as an additional defendant and citing many
of the facts referenced in this Amended Complaint. (See Docket
No. 1.) Upon finding that the issues and facts are substantially
related such that the interests of judicial economy would be best
served by assigning the two cases to the same District Judge and
Magistrate Judge, this Court issued an order assigning Civ. No.
12-00026 to Judge Alan C. Kay and Magistrate Judge Richard
Puglisi.
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satisfied that there is no clear error on the face of the record.
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
The district court may receive further evidence or recommit the
matter to the magistrate judge with instructions.
§ 636(b)(1).

28 U.S.C.

It may also consider the record developed before

the magistrate judge.

D. Haw. Local Rule 74.2.

The district

court must arrive at its own independent conclusions about those
portions of the magistrate judge’s report to which objections are
made, but a de novo hearing is not required.

United States v.

Remsing, 874 F.2d 614, 618 (9th Cir. 1989).

B.

Special Considerations for a Pro Se Litigant
A pro se litigant’s pleadings must be read more

liberally than pleadings drafted by counsel.

Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Wolfe v. Strankman, 392 F.3d 358,
362 (9th Cir. 2004); Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987).

When a plaintiff proceeds pro se and technically

violates a rule, the court should act with leniency toward the
pro se litigant.

Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.

1986); Pembrook v. Wilson, 370 F.2d 37, 39-40 (9th Cir. 1966).
However, “a pro se litigant is not excused from knowing the most
basic pleading requirements.”

American Ass’n of Naturopathic

Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000)
(citations omitted).

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However, the court may deny a pro se plaintiff leave to
amend where amendment would be futile.

Flowers v. First Hawaiian

Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook, Perkiss &
Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247
(9th Cir. 1990) (per curiam)); Lucas v. Dep’t of Corr., 66 F.3d
245, 248-49 (9th Cir. 1995) (per curiam) (holding that dismissal
of a pro se complaint without leave to amend is proper only if it
is clear that the deficiencies cannot be cured by amendment or
after the pro se litigation is given an opportunity to amend);
Eldridge,832 F.2d at 1135-36.
Plaintiff has not requested a hearing, and the Court
finds that a hearing in this matter is neither necessary nor
appropriate.

See D. Haw. Local Rule 7.2(d).
III.

DISCUSSION

The 1/3/2012 F&R recommended that this Court dismiss
the Second Amended Complaint without leave to amend, noting,
among other things, that “[a]s long as Plaintiff seeks to recover
from the Social Security Administration, he must demonstrate that
he has exhausted his administrative remedies.”
at 7-8.)

(Docket No. 16,

In his January 17, 2012 letter to the Court, Plaintiff

objected to Magistrate Judge Puglisi’s finding that Plaintiff had
not exhausted his administrative remedies.

(Docket No. 18.)

Plaintiff’s Objection asserts that Plaintiff was “never
allowed to appeal in the social security’s court” because
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Defendant repeatedly sent correspondence to Plaintiff at a nonexistent P.O. box, addressed to Plaintiff’s grandmother.

Id.

Plaintiff states that he finally received the correspondence from
Defendant some time in January 2011 (although the letter was
dated November 9, 2010) when he walked over to the Kapolei SSA
office, at which point he informed Defendant that the address on
file was incorrect.

Id.

Furthermore, Plaintiff states,

Defendant never informed Plaintiff that he could write a letter
to a judge, fill out a form, and show proof of why he missed the
60-day time period for an appeal; in fact, Plaintiff asserts, he
only learned of his right to appeal the decision after Magistrate
Judge Puglisi issued a Findings and Recommendation.

Id.

Plaintiff asserts that he filled out an appeal and
filed it on November 18, 2011, and since that time has received
no response.

Id.

Further, Plaintiff states, employees at

Plaintiff’s local SSA office claimed they never received
Plaintiff’s letters or form, even though he was informed by a
counselor via telephone a week earlier that she had received the
documents.

Id.

Generally, Plaintiff claims, Defendant has

continuously lost Plaintiff’s documents, and that is the basis
for his Objection; as Plaintiff explains, “what else can I do if
the defendant is playing unfair.”

Id.

Plaintiff states that, in

light of Defendant’s actions, he is “stuck in [] limbo.”

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Id.

The Court notes that it has already adopted the
11/17/2011 F&R, in an Order dated December 6, 2011.
No. 12.)

(See Docket

In the 11/7/2011 F&R, Magistrate Judge Puglisi

concluded that Plaintiff’s complaint failed to comply with Rule 8
because it did not allege sufficient grounds for the Court’s
jurisdiction.

(See Docket No. 9; Fed. R. Civ. P. 8(a)(2).)

Specifically, the 11/17/2011 F&R stated, Plaintiff failed to
allege facts sufficient to show that he had exhausted his
administrative remedies before seeking judicial review.
No. 9; 42 U.S.C. § 405 (g).)

(Docket

As Magistrate Judge Puglisi stated

in the 11/17/2011 F&R, in challenging determinations of the SSA,
judicial review is only available to a plaintiff after “any final
decision of the Commissioner of Social Security made after a
hearing.”

(Docket No. 9 (citing Bass v. Soc. Sec. Admin., 872

F.2d 832, 833 (9th Cir. 1989) (a claimant’s failure to exhaust
administrative remedies under § 405(g) deprives a district court
of jurisdiction).)
The administrative review process involves the
following steps: (1) a state agency has made an initial adverse
determination on the claimant’s application for benefits; (2) the
claimant has sought reconsideration; (3) the claimant obtains a
hearing before an Administrative Law Judge (“ALJ”); and (4) the
ALJ’s decision becomes final after the claimant requests review
before an Appeals Council, and the Appeals Council either grants

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or denies review.

See 20 C.F.R. § 404.900.

After the plaintiff

has completed these four steps in the administrative review
process, the agency is considered to have made its final
decision, and the plaintiff may request judicial review by filing
an action in a Federal district court.

The statute explicitly

provides: “If you are dissatisfied with our decision in the
review process, but do not take the next step within the stated
time period, you will lose your right to further administrative
review and your right to judicial review, unless you can show us
that there was good cause for your failure to make a timely
request for review.”

4/

Id.4/

The authority to decide whether good

The applicable statute provides:

In determining whether you have shown that you had good cause for
missing a deadline to request review we consider –
(1) What circumstances kept you from making the request on time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements of the Act
resulting from amendments to the Act, other legislation, or court
decisions; and
(4) Whether you had any physical, mental, educational, or
linguistic limitations (including any lack of facility with the
English language) which prevented you from filing a timely
request or from understanding or knowing about the need to file a
timely request for review.
20 C.F.R. § 404.911. Examples of circumstances where good cause
may exist include: (1) You were seriously ill and were prevented
from contacting us in person, in writing, or through a friend,
relative, or other person;(2) there was a death or serious
illness in your immediate family;(3) Important records were
(continued...)
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cause reasons exist to permit the granting of an extension of
time rests exclusively with the Appeals Counsel of the SSA.

See

Ensey v. Richardson, 469 F.2d 664 (9th Cir. 1972); adopted as
Soc. Sec. Rul. 73-45c, 1971-1975 BC 321.

Accordingly, a

plaintiff’s allegations of good cause must be brought to the
attention of the SSA, and cannot be properly considered in a
subsequent district court appeal.

Id.5/

4/

(...continued)
destroyed or damaged by fire or other accidental cause;(4) You
were trying very hard to find necessary information to support
your claim but did not find the information within the stated
time periods;(5) you asked us for additional information
explaining our action within the time limit, and within 60 days
of receiving the explanation you requested reconsideration or a
hearing, or within 30 days of receiving the explanation you
requested Appeal Council review or filed a civil suit;(6) we gave
you incorrect or incomplete information about when and how to
request administrative review or to file a civil suit;(7) you did
not receive notice of the determination or decision;(8) you sent
the request to another Government agency in good faith within the
time limit and the request did not reach us until after the time
period had expired;(9) unusual or unavoidable circumstances
exist, including the circumstances described in paragraph (a)(4)
of this section, which show that you could not have known of the
need to file timely, or which prevented you from filing timely.
20 C.F.R. § 404.911.
5/

See also Milner v. Sullivan, 956 F.2d 1167 (9th Cir.
1992)(“A claimant’s failure to exhaust the administrative
remedies set forth in 42 U.S.C. § 405(g) deprives the district
court of jurisdiction.”); Bass v. Soc. Sec. Admin., 872 F.2d 832,
833 (9th Cir. 1989) (after plaintiff filed a pro se civil action
challenging the SSA’s actions, and had failed to first appeal the
SSA’s notification that he had been overpaid disability benefits,
the Ninth Circuit held that the district court did not err in
dismissing his complaint for lack of subject matter jurisdiction;
claimant’s failure to exhaust the procedures set forth in the
Social Security Act, 42 U.S.C. § 405(g), deprived the district
court of jurisdiction).
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Plaintiff has also failed to satisfy any of the limited
exceptions to the exhaustion requirement.
waived by the Secretary.

Exhaustion may be

Weinberger v. Salfi, 422 U.S. 749,

766-67(1975). Here, based upon the facts presented in Plaintiff’s
Second Amended Complaint, there is no basis to determine that the
Secretary has waived appellant's exhaustion requirement.
Further, Courts may waive exhaustion when “cases . . .
arise where a claimant’s interest in having a particular issue
resolved promptly is so great that deference to the agency’s
judgment is inappropriate.”

Cassim v. Bowen, 824 F.2d 791, 795

(9th Cir. 1987) (citing Mathews v. Eldridge, 424 U.S. 319, 330
(1976)).

A district court will waive the exhaustion requirement

if, and only if, the claimant satisfies a three-part test: “[t]he
claim at issue must be (1) collateral to a substantive claim of
entitlement (collaterality), (2) colorable in its showing that
refusal to the relief sought will cause an injury which
retroactive payments cannot remedy (irreparability), and (3) one
whose resolution would not serve the purposes of exhaustion
(futility).” Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987).
Here, the Court cannot conclude that Plaintiff satisfies
this three part test.

The claim at issue is not collateral to

Plaintiff’s substantive claim of entitlement to benefits, but
rather is inextricably tied to that substantive claim.
Accordingly, based upon the facts presented in the Second Amended

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Complaint, Plaintiff has failed to satisfy the three-part test and
is not eligible for waiver of the exhaustion requirement in this
district court proceeding.

See Bass v. Social Sec. Admin., 872

F.2d 832, 833 (9th Cir. 1989).6/
Upon de novo review of Judge Puglisi’s findings and
recommendation as they relate to Plaintiff’s alleged failure to
exhaust his administrative remedies, this Court concurs with
Magistrate Judge Puglisi’s conclusion; Plaintiff has failed to
assert a proper basis for jurisdiction because he has not
established that he exhausted his administrative remedies, as
required pursuant to 42 U.S.C. § 405(g).

Indeed, Plaintiff has

conceded that he was told by the SSA that his time to
administratively appeal the decision had expired.
Compl. at 1, 3.)

(Second Amended

Further, the Plaintiff failed to seek

reconsideration and did not secure a hearing before an
Administrative Law Judge within the required statutory time frame.
See 42 U.S.C. § 405(g); 20 C.F.R. §§ 404.900, 404.1503.

6/

See also Haworth v. Astrue,
2009 WL 1393678 (C.D. Cal. May 14,
lacked subject matter jurisdiction
because claimant failed to exhaust
remedies regarding application for
failed to meet the three-part test
exception).
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No. EDCV 08-1192-SJO (RC),
2009) (held: district court
over claimant’s complaint
available administrative
disability benefits, and
to establish a “good cause”

The Court further concludes that there is no clear error
in any of Magistrate Judge Puglisi’s other conclusions in the
1/3/2012 F&R to which Plaintiff has not objected.
Generally, “dismissal without leave to amend is improper
unless it is clear that the complaint could not be saved by any
amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th
Cir.2009) (internal quotation marks omitted). “But courts have
discretion to deny leave to amend a complaint for futility, and
futility includes the inevitability of a claim's defeat on summary
judgment.” Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th
Cir.1987) (citations and internal quotation marks omitted).
The Court notes that Plaintiff has failed to allege a
proper basis for jurisdiction after three separate attempts, and
it appears any further attempts may be futile.

However, the Court

is sympathetic to Plaintiff’s allegations, specifically those
concerning the SSA’s apparent repeated failure to provide accurate
information or properly file Plaintiff’s documents.

Accordingly,

in light of Plaintiff’s pro se status, the Court dismisses
Plaintiff’s Second Amended Complaint with leave to amend.
This Order details the deficiencies in Plaintiff’s
Second Amended Complaint.

Should Plaintiff desire to pursue this

case further, he is directed to consider the Order carefully in
crafting his Third Amended Complaint.

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The Court notes that the

assistance of counsel should aid Plaintiff in correcting the
defects in the Complaint.
IV.

CONCLUSION

For the foregoing reasons, the Court (1) ADOPTS, AS
MODIFIED, the 1/3/12 F&R, (2) DENIES Plaintiff’s application to
proceed without prepayment of fees; and (3) DISMISSES the Second
Amended Complaint with leave to amend.

In the event Plaintiff

wishes to file a Third Amended Complaint, he must do so within 30
days from the date of this Order; failure to do so will result in
automatic dismissal of this case.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, February 27, 2012.

________________________________
Alan C. Kay
Sr. United States District Judge

Medeiros V. United States Social Security Administration, Civ. No. 11-00660
ACK-RLP: Order Adopting, As Modified, The January 3, 2012 Findings and
Recommendation That Plaintiff’s Third Application To Proceed Without Prepayment
Of Fees Be Denied And His Second Amended Complaint Be Dismissed.

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