Miller v. Commissioner of Social Security

Filing 4

ORDER: The petition to proceed without prepayment of fees and costs 2 is DENIED, and the complaint is DISMISSED, without prejudice, under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). Pursuant to Fed. R. Civ. P. 15. Mr. Miller shall have twenty-one days from the date of this order to file an amendedcomplaint and petition to proceed in forma pauperis. Signed by Judge Robert L Miller, Jr on 11/19/2015. (cc: Miller)(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KEVIN MILLER,

)
)
Plaintiff
)
)
vs.
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CAROLYN COLVIN, COMMISSIONER )
OF SOCIAL SECURITY, in her Official )
Capacity,
)
Defendant
)

CAUSE NO. 2:15-CV-390 RLM-JEM

OPINION AND ORDER
Kevin Miller filed a pro se complaint against the Commissioner of Social
Security, in her official capacity, under 42 U.S.C. §1983 and a petition to proceed
without pre-payment of fees and costs. He alleges that the Commissioner violated
his right to due process when she denied his application for Supplemental
Security Income benefits, following a remand in 2014. See Miller v. Colvin, No.
4:13-CV-16 (N.D. Ind. Sep 25, 2014). For the following reasons, the motion to
proceed without prepayment of fees and costs is DENIED, and Mr. Miller’s
complaint is DISMISSED, without prejudice.
42 U.S.C. § 1983 provides a cause of action against state officials who
violate constitutional or other federally protected rights. But Mr. Miller’s complaint
seeks relief against a federal official, in her official capacity, and is effectively a
suit against the Social Security Administration, a federal agency. To the extent it
could be construed as an action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) – the “federal analog to a § 1983
suit”, Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) – Mr. Miller’s claim is

barred by sovereign immunity. Federal Deposit Insurance Corp. v. Meyer, 510 U.S.
471, 485-86 (2015) (Bivens action can’t be brought against a federal agency);
Horne v. Social Security Admin., 359 Fed. Appx. 138, 144 (11th Cir. 2010)
(“Bivens permits suits only against federal agents in their individual capacities.”);
Cuevas v. Dept. Homeland Security, 233 Fed. Appx. 642, 643-44 (claim against
federal agency and federal officials in their official capacity prohibited under
Bivens).
To the extent Mr. Miller meant to bring a Bivens action against the
Commissioner in her individual capacity, his complaint has no factual allegations
that would explain how the Commissioner violated his constitutional rights and
doesn’t state a plausible claim on which relief could be granted. While the court
might have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c) to review the
Commissioner's denial of benefits following the 2014 remand, Mr. Miller doesn’t
request such relief, didn't provide a copy of the decision, and doesn't allege any
facts from which the court could infer that a request for review was timely filed or
that the Commissioner's decision wasn't supported by substantial evidence.
Accordingly, the petition to proceed without prepayment of fees and costs
[Doc. No. 2] is DENIED, and the complaint is DISMISSED, without prejudice,
under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). Pursuant to Fed. R. Civ. P. 15, Mr.
Miller shall have twenty-one days from the date of this order to file an amended
complaint and petition to proceed in forma pauperis.
SO ORDERED.

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ENTERED: November 19, 2015

/s/ Robert L. Miller, Jr.
Judge, United States District Court

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