Carter v. Astrue

Filing 16

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that defendant's motion to dismiss [Doc. # 15 ] is granted. A separate order of dismissal will be entered. Signed by District Judge Carol E. Jackson on 10/17/2012; (DJO)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION EDNA D. CARTER, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 4:12-CV-1022 (CEJ) MEMORANDUM AND ORDER This matter is before the Court on defendant’s motion to dismiss plaintiff’s complaint as untimely filed. Plaintiff, who proceeds pro se, has not filed a response in opposition to the motion and her time for doing so has expired. On October 7, 2010, an administrative law judge (ALJ) issued a decision denying plaintiff’s application for disability benefits under Titles II and XVI of the Social Security Act. On March 20, 2012, the Appeals Council denied plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner. Decl. of Marian Jones ¶ 3(a) [Doc. #15-1]. By statute, an individual may seek judicial review of the ALJ’s decision by commencing a civil action “within sixty days after the mailing to [her] of notice of such decision or within such further time as the Commissioner. . . may allow.” 42 U.S.C. § 405(g). The notice of denial sent by the Appeals Council informed her that she had sixty days from the date of receipt, which was deemed to be five days after mailing. Thus, in order to be timely filed, plaintiff’s complaint was due no later than May 26, 2012. On June 6, 2012, plaintiff filed her complaint. [Doc. #1]. In that complaint, she states that she received the notice of the decision of the Appeals Council on March 20, 2012. The 60-day period specified in § 405(g) is a period of limitation. See Bowen v. City of New York, 476 U.S. 467, 478 (1986) (citing Mathews v. Eldridge,424 U.S. 319, 328, n. 9 (1976), and Wienberger v. Salfi, supra, 422 U.S. 749, 764 (1975)). Equitable tolling of the limitations period is available, id. at 480, based on the excusable neglect of the filing party. Shempert v. Harwick Chem. Corp., 151 F.3d 793, 797 (8th Cir. 1998). As a general rule, equitable tolling is only appropriate where the circumstances are truly beyond the plaintiff’s control. Id. at 798. Plaintiff has not responded to the motion to dismiss and thus presents no basis for equitable tolling of the 60-day limitations period and her complaint is untimely filed. Accordingly, IT IS HEREBY ORDERED that defendant’s motion to dismiss [Doc. #15] is granted. A separate order of dismissal will be entered. ___________________________ CAROL E. JACKSON UNITED STATES DISTRICT JUDGE Dated this 17th day of October, 2012. -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?