Royal v. Commissioner of Social Security
Filing
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OPINION AND ORDER DENYING 2 MOTION for Leave to Proceed in forma pauperis filed by Vanya D Royal; GRANTING Pla to/incl 4/21/2014 to pay the $400.00 filing fee. Pla CAUTIONED that if she does not respond by that date, this case will be dismissed w/o further notice for non-payment of the filing fee. Signed by Judge Rudy Lozano on 3/21/2014. (lns)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VANYA D. ROYAL,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CAUSE NO. 1:14-CV-59
OPINION AND ORDER
This matter is before the Court on Plaintiff Vanya D. Royal’s
complaint and petition to proceed in forma pauperis.
For the
reasons set forth below, the Court: (1) DENIES the Vanya D. Royal
leave to proceed in forma pauperis (DE # 2); (2) GRANTS Vanya D.
Royal to and including April 21, 2014, to pay the $400.00 filing
fee; and (3) CAUTIONS Vanya D. Royal that if she does not respond
by that date, this case will be dismissed without further notice
for non-payment of the filing fee.
BACKGROUND
According
to
the
Plaintiff’s
complaint,
she
sought
both
Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”) from the Social Security Administration (“SSA”).
The Plaintiff was ultimately awarded benefits in 2009, but claims
that she did not receive all the back pay to which she was
entitled.
She indicates she appealed and requested a hearing but
her request was denied.
She further alleges that she filed a
complaint against the individual responsible for this denial, Mr.
Reynolds,
complaint.
but
she
never
heard
anything
in
response
to
her
Then, in February of 2012, she received a letter from
the SSA responding and expressing regret for the delay.
That
envelope was postmarked February 25, 2012, but the letter in the
envelope was dated April 26, 2011.
It is not clear from the
complaint whether this letter was responding to her complaint
against Mr. Reynolds or to her claim for back pay, but the letter
indicated she could appeal.
She filed a timely appeal on March 8,
2012, but the SSA deemed that appeal untimely.
As a result, the
Plaintiff alleges her due process rights were violated.
The
Plaintiff
Joe
further
indicates
that
she
contacted
Senator
Donnelly’s office regarding her case on June 11, 2013, and that she
attempted to obtain legal aid through Indiana Legal Services to no
avail.
The Plaintiff filed her complaint by using a preprinted form
for complaints under Title 42 U.S.C. § 1983.
In indicating what
relief she is requesting, the Plaintiff writes: “[j]ustify a
hearing for my back pay.”
DISCUSSION
The IFP statute, 28 U.S.C. section 1915, allows an indigent
plaintiff
to
commence
a
civil
2
action
without
prepaying
the
administrative costs (e.g. filing fee) of the action.
See 28
U.S.C. section 1915(a)(1); see also Denton v. Hernandez, 504 U.S.
25, 27 (1992).
When presented with an IFP application, the
district court makes two determinations: (1) whether the suit has
sufficient merit; and (2) whether the plaintiff’s poverty level
justifies IFP status.
See 28 U.S.C. section 1915(e)(2); Denton,
504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841 F.2d 751, 757 (7th
Cir. 1988).
If a court finds that the suit lacks sufficient merit
or that an inadequate showing of poverty exists, the court must
deny the in forma pauperis application. See Smith-Bey, 841 F.2d at
757.
The Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which provides a cause of action to redress the violation of
federally secured rights by a person acting under color of state
law.
Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004).
Federal courts have jurisdiction to hear claims under § 1983
pursuant to 28 U.S.C. § 1331 which provides that “the district
court shall have original jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the United
States.”
28 U.S.C. § 1331.
But, 42 U.S.C. § 405(h) provides
that:
The findings and decision of the Commissioner
of Social Security after a hearing shall be
binding upon all individuals who were parties
to such hearing. No findings of fact or
decision of the Commissioner of Social
Security shall be reviewed by any person,
tribunal, or governmental agency except as
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herein provided. No action against the United
States, the Commissioner of Social Security,
or any officer or employee thereof shall be
brought under section 1331 or 1346 of Title 28
to recover on any claim arising under this
subchapter.
42 U.S.C. § 405(h).
In short, 42 U.S.C. § 405(h) prevents the
Plaintiff from bringing suit under § 1331 if her claim arises under
§ 405.
Here, although the Plaintiff has framed her suit as a §
1983 action, she seeks a hearing and, ultimately, benefits due to
her under the Social Security Act.
As a result, § 405 prevents the
Plaintiff from bringing suit under § 1331, including the instant
action under § 1983.
The Court has considered whether it has jurisdiction to hear
the Plaintiff’s complaint under 42 U.S.C. § 405(g), which allows
judicial review of final agency decisions.
But § 405(g) provides
that:
Any individual, after any final decision of
the Commissioner of Social Security made after
a
hearing
to
which
he
was
a
party,
irrespective of the amount in controversy, may
obtain a review of 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
of Social Security may allow.
42 U.S.C. § 405(g).
The last agency action referenced in the
Plaintiff’s complaint is a denial of an appeal she filed on March
8, 2012.
appeal,
She does not provide a date that the agency denied that
although
it
appears
that
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denial
occurred
before
she
contacted Senator Joe Donnelly’s office about her case on June 11,
2013.
At this juncture, it appears that more than 60 days has
passed since the last agency action, and the Plaintiff has not
indicated that the Commissioner has agreed to allow her to file an
action for review after the sixty days has elapsed.
Accordingly,
while the Plaintiff meets the poverty criteria for IFP, it appears
that the Plaintiff’s suit is without merit. The request to proceed
IFP must be denied.
CONCLUSION
For the foregoing reasons, the Court:
(1) DENIES Vanya D. Royal leave to proceed in forma pauperis
(DE # 2);
(2) GRANTS Vanya D. Royal to and including April 21, 2014, to
pay the $400.00 filing fee; and
(3) CAUTIONS Vanya D. Royal that if she does not respond by
that date, this case will be dismissed without further notice for
non-payment of the filing fee.
DATED: March 21, 2014
/S/RUDY LOZANO, Judge
United States District Court
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