Johnson v. Spangler

Filing 16

ORDER granting 11 Motion to Dismiss; adopting in part 14 Report and Recommendation; sustaining in part 15 plaintiff's Objection. Within 10 days, counsel for Astrue shall notify the Court whether present service is sufficient for this case to proceed, or instead whether Johnson must serve the remaining two government offices. Signed by District Judge Carlton W. Reeves on 2/7/2013. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
LILLIAN JOHNSON

PLAINTIFF

v.

CAUSE NO. 3:11-CV-599-CWR-FKB

TODD SPANGLER; MICHAEL
ASTRUE, Commissioner of Social
Security

DEFENDANTS

ORDER
Before the Court are the defendants’ motion to dismiss Todd Spangler, Docket No. 11, the
Magistrate Judge’s Report and Recommendation, Docket No. 14, and the plaintiff’s objection to the
Report and Recommendation, Docket No. 15. The Magistrate Judge recommends dismissing
Spangler with prejudice and dismissing Michael Astrue without prejudice. Id. Having considered
the facts, parties’ arguments, and applicable law, the objection will be sustained in part and the
Report and Recommendation will be adopted in part.
I.

Background
In this case, plaintiff Lillian Johnson appeals the Social Security Administration’s denial of

disability benefits. Docket No. 1. Defendant Spangler was the Administrative Law Judge (ALJ) who
ruled upon Johnson’s case. Id. Defendant Astrue is the Commissioner of the Social Security
Administration.
On December 11, 2012, the Magistrate Judge issued a Show Cause Order directing Johnson
to explain why the defendants had not been served with process within 120 days of the filing of her
complaint, as required by Rule 4(m). Docket No. 10. Johnson’s response was due by December 27.
Id.
On December 13, 2012, the defendants moved to dismiss Spangler, arguing that ALJs are
not proper defendants in Social Security appeals. Docket No. 11.
On January 3, 2013, Johnson filed a consolidated response to the Show Cause Order and the
motion to dismiss. Docket No. 13. Her response set forth her employment history and why she
believed she was entitled to Social Security disability benefits, but did not address service of process
or the defendants’ argument for dismissing the ALJ. Id.

On January 14, 2013, the Magistrate Judge issued a Report and Recommendation. Docket
No. 14. It recited this case’s history, found that Johnson had failed to address the issue presented in
the Show Cause Order, and found that Johnson had not filed a substantive response to the
defendants’ motion to dismiss. Id. The Magistrate Judge recommended dismissing Spangler with
prejudice and dismissing Astrue without prejudice. Id.
Johnson sought and received an extension to object to the Report and Recommendation, see
Text-Only Order of January 31, 2013, and subsequently filed her objection. Docket No. 15. In it, she
states that during the 120-day period for service of process, her disease “was out of control and
needed immediate medical attention. . . . I lost track of time to respond to the Order to Show Cause
nor the Motion to Dismiss.” Id. Johnson requests 90 days to name the proper party in her suit. Id.
II.

Discussion
Johnson has presented no argument as to why the ALJ is a proper defendant in this suit. He

is not. The Commissioner of Social Security is the proper defendant in these cases. 42 U.S.C. §
405(g). Accordingly, the Court will adopt the Report and Recommendation on this point, grant the
defendants’ motion to dismiss, and dismiss Spangler from this case with prejudice.
It is true that Astrue was not served within 120 days of the filing of the complaint. But a
review of the docket sheet suggests that the error was not Johnson’s. On October 4, 2011, the
Magistrate Judge ordered the Clerk of Court to mail Johnson the appropriate summons forms.
Docket No. 3. The docket sheet reveals that the forms were mailed on April 19, 2012 – a delay of
more than six months. Johnson returned two summons forms relatively promptly: one (for Spangler)
on May 8, and another (for Astrue) on June 20. Docket Nos. 5, 7. Spangler’s was returned
unexecuted on May 16, while Astrue was served on June 25.1 Docket Nos. 6, 8.
At the beginning of this case, the Court wrote that “[a] delay in service of the defendant
beyond this 120 days which is attributable to the plaintiff could result in dismissal of the case.”
Docket No. 3 (emphasis added). Were it not for the Clerk’s delay, though, these summons would
have been issued and returned within 120 days. This constitutes good cause to not dismiss Astrue
from the case.
There is one final issue to take up. The Rules of Civil Procedure require federal agencies to

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The fact that Spangler was never served is itself an independent basis for dismissing him from this suit.

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be served with three summons: one to the agency in question (i.e., the Social Security
Administration), one to the United States Attorney General in Washington, D.C., and one to the
United States Attorney for the district in which the action is brought (i.e., the Southern District of
Mississippi). See Fed. R. Civ. P. 4(i)(1); see also Conn v. United States, 823 F. Supp. 2d 441, 444
(S.D. Miss. 2011) (“Service upon the United States [and a federal agency] is not complete until the
plaintiff complies with the requirements relevant to both the United States attorney and the Attorney
General.”). Johnson has only served the Social Security Administration.
Counsel for Astrue have entered an appearance and are participating in the case; they moved
to dismiss Spangler on November 29, 2012. Docket No. 9. They have not argued that Johnson’s suit
should be dismissed for failure to serve the Attorney General and the U.S. Attorney for the Southern
District of Mississippi. Within 10 days, therefore, counsel for Astrue shall notify the Court whether
present service is sufficient for this case to proceed, or instead whether Johnson must serve the
remaining two government offices. If the government is ready to proceed, it should file its answer
and a certified copy of the underlying record in an appropriate time frame. See Docket No. 4 (Order
Directing Filing of Briefs).
III.

Conclusion
The Report and Recommendation is adopted in part as it relates to defendant Spangler;

therefore, the defendants’ motion to dismiss is granted. Todd Spangler is hereby dismissed with
prejudice. As to defendant Astrue, Johnson’s objection is sustained. Within 10 days, the government
shall notify the Court and the plaintiff how it wishes to move this matter forward.
SO ORDERED, this the 7th day of February, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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