Thomas v. Commissioner of Social Security

Filing 16

OPINION and ORDER (1) Adopting Magistrate Judge's 15 Report and Recommendation, and (2) Granting Defendant's 12 Motion to Dismiss. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELAINA THOMAS,
Plaintiff,
Civil Case No. 19-13230
Honorable Linda V. Parker

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/

OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE’S
SEPTEMBER 1, 2020 REPORT AND RECOMMENDATION [ECF NO. 15]
AND (2) GRANTING DEFENDANT’S MOTION TO DISMISS
[ECF NO. 12]
On November 1, 2019, Plaintiff Elaina Thomas filed this pro se lawsuit in
which she appears to challenge the Commissioner of Social Security’s
(“Commissioner”) decision denying her application for social security benefits
under the Social Security Act. (ECF No. 1.) That decision is pending before the
Appeals Council. (ECF No. 12-1 at Pg. ID 134.) This Court referred the matter to
Magistrate Judge Patricia T. Morris for all pretrial proceedings, including a hearing
and determination of all non-dispositive matters pursuant to 28 U.S.C.
§636(b)(1)(A) and/or a report and recommendation (“R&R”) on all dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). (ECF No. 5.) The

Commissioner subsequently filed a Motion to Dismiss (ECF No. 12) and Plaintiff
responded (ECF No. 14).
On September 1, 2020, Magistrate Judge Morris issued an R&R
recommending that this Court grant the Commissioner’s motion. (ECF No. 15.)
In the R&R, Magistrate Judge Morris explains that the Court does not have subject
matter jurisdiction to review Plaintiff’s claims because the Commissioner’s
decision is not final and “Plaintiff has not made any claims implicating
constitutional violations that would justify waiving the exhaustion requirement.”
(Id. at Pg. ID 188-89.) At the conclusion, Magistrate Judge Morris advises the
parties that they may object to and seek review of the R&R within 14 days of
service upon them. (Id. at Pg. ID 190.) She further specifically advises the parties
that “[f]ailure to file specific objections constitutes a waiver of any further right to
appeal.” (Id. (citing Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of
Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters,
638 F.2d 947 (6th Cir. 1981))) Neither party filed objections to the R&R and the
time to do so has expired.
The Court has carefully reviewed the R&R and concurs with the conclusions
reached by Magistrate Judge Morris. The Court therefore adopts the R&R.
Accordingly,

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IT IS ORDERED that Defendant’s Motion to Dismiss (ECF No. 12) is
GRANTED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 12, 2020
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, October 12, 2020, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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