Polonczyk v. Astrue et al

Filing 9

ORDER entered by Judge Ortrie Smith. Plaintiff's Motion for Summary Judgment (Doc. # 5) is denied and Defendants' Motion to Dismiss (Doc. # 7) is granted. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
KIM ANTHONY POLONCZYK
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
and
UNITED STATES DEPARTMENT OF
SOCIAL SECURITY,
Defendants.

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Case No. 12-3472-CV-S-ODS

ORDER AND OPINION (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT; AND (2) GRANTING DEFENDANT’S MOTION TO DISMISS
Pending is Plaintiff’s Motion for Summary Judgment (Doc. # 5) and Defendants’
Motion to Dismiss (Doc. # 7). Plaintiff’s Motion for Summary Judgment is denied and
Defendants’ Motion to Dismiss is granted.

I. BACKGROUND
On September 15, 2010, an Administrative Law Judge (“ALJ”) issued a partially
unfavorable decision on an application for Social Security benefits filed by Plaintiff. Def’s
Suggestions in Support (Doc. #7), Exh. A, p. 15.

Plaintiff thereafter sought further

administrative review of the ALJ’s decision, but on November 15, 2011, the Appeals
Council for the Social Security Administration (“SSA”) denied Plaintiff’s request for
additional review.

Def’s Suggestions in Support (Doc. #7), Exh. A, p. 19.

Written

notification of the Appeals Council action was mailed to Plaintiff at the address he then
had on file with the SSA. On November 2, 2012, Plaintiff filed his pro se Complaint
against the Commissioner and the SSA contending that the present suit is proper under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. Plaintiff’s Complaint makes
several allegations, including, but not limited to:


“The defendants . . . have continued to as recently as 2009 and 2010 place a
higher value on guesses on medical health by psychologists over mandated
‘conclusions from professional medical examinations and testing’ which is required
by congressional law.” Complaint (Doc. # 3), at 2.



“The defendants have constantly denied the plaintiff his right to a hearing under
the Social Security Disability rules since 1998.” Complaint (Doc. # 3), at 2.



“The defendants . . . have solicited, promoted, encouraged, paid for, and illegally
and willfully in violation of congressional mandate accepted the determination of
this unauthorized practice of medicine . . . ceased the payments of the severely
disabled plaintiff without the mandated ‘medical findings through testing’ by
medical experts.” Complaint (Doc. #3), at 2.



“The defendants being parts and wholes of the branch of the United States
Government to assist the disabled have intentionally discriminated against the
plaintiff’s disability and denied him his rights to hearings, congressional mandates,
assistance and his lifetime contributions.” Complaint (Doc. # 3), at 2-3.
On January 7, 2013, Plaintiff filed a Motion for Summary Judgment (Doc. # 5).

Defendant did not respond and the time for doing so has passed. On January 23, 2013,
Defendant filed a Motion to Dismiss (Doc. # 7) for lack of subject matter jurisdiction and/or
failure to state a cognizable claim. On January 25, 2013, Plaintiff filed its Suggestions in
Opposition to Defendants’ Motion to Dismiss. The Court now considers Defendants’
Motion to Dismiss.
II. STANDARD
To survive a motion to dismiss, a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The claim for relief must be “‘plausible on its face,’” meaning it must “plead[]
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007)).
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Mere “‘labels and

conclusions,’” “‘formulaic recitation[s] of the elements of a cause of action,’” and “‘naked
assertion[s]’ devoid of ‘further factual enhancement’” are insufficient.
Twombly, 550 U.S. at 555, 557).

Id.

(quoting

Additionally, a “document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations omitted).

III. DISCUSSION
In its Motion to Dismiss, Defendant argues that all claims raised in Plaintiff’s pro se
Complaint should be dismissed for lack of subject matter jurisdiction and/or failure to state
a cognizable claim because (1) it is untimely barred by 42 U.S.C. § 405(g); (2) the
Commissioner is absolutely immune from individual tort liability; and (3) Plaintiff has failed
to exhaust his administrative remedies. In response to Defendant’s Motion to Dismiss,
Plaintiff filed a one-page Brief contending that he “has more than adequately stated his
claim” and that his “superior evidence” supports a ruling in favor of him. Pl’s Brief in
Opposition, (Doc. # 8) at 1.

A. Judicial Review is Untimely
First, to the extent that Plaintiff’s Complaint seeks judicial review of the
Commissioner’s final decision denying an application for Social Security benefits,
Defendant argues that this case should be dismissed because Plaintiff’s Complaint is
time-barred. The Court agrees.
An individual may obtain review of a final decision of the Commissioner by a civil
action commenced within sixty days after the mailing of notice of such decision. 42
U.S.C. § 405(g). The date of receipt of an Appeals Council Notice of Denial of Request
for Review is presumed to be five days after the date of such notice, unless there is a
reasonable and specific showing to the contrary. 20 C.F.R. § 422.210(c). The Eighth
Circuit has upheld the enforcement of this limitations period. See, e.g., Bess v. Barnhart,
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337 F.3d 988, 990 (8th Cir. 2003) (affirming district court’s determination that a complaint
seeking judicial review of the Commissioner’s decision is untimely). In the absence of
equitable tolling, failure to comply with the sixty-day limitation warrants dismissal. Bess
v. Barnhart, 337 F.3d 988, 989-90 (8th Cir. 2003).
In this case, the Appeals Council Notice of Denial of Request for Review was dated
November 15, 2011. Plaintiff had 65 days from that date to request judicial review of the
Commissioner’s final decision. Accordingly, to be considered timely, Plaintiff’s action for
judicial review, must have been commenced on or before January 15, 2012. However,
Plaintiff did not file his Complaint until November 2, 2012. Further, Plaintiff provides no
argument or evidence demonstrating that equitable tolling applies in this case.
Accordingly, to the extent Plaintiff seeks judicial review of the Commissioners decision,
the action is dismissed as untimely.

B. Sovereign Immunity
Defendant argues that to the extent that Plaintiff’s Complaint can be interpreted as
seeking to assert a tort claim against the Commissioner and the SSA, the doctrine of
sovereign immunity bars such a suit. The Court agrees.
It is well-established that “sovereign immunity shields the Federal Government
and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).
However, the FTCA provides “a limited waiver of the United States’s sovereign immunity,
to permit persons injured by federal-employee tortfeasors to sue the United States for
damages in federal district court.” Mader v. United States, 654 F.3d 794, 797 (8th Cir.
2011). However, waiver does not apply in this case. Plaintiff’s Complaint names the
Commissioner and the SSA as Defendants. Under the FTCA, only the United States,
and not its agencies or officials, may be sued. 28 U.S.C. § 2679(b)(1); see also Artis v.
Petrovsky, 638 F. Supp. 51, 53 (W.D. Mo. 1986) (“When a claim is brought pursuant to
the FTCA, the United States rather than the agency or its employees must be named as
defendant.”). Accordingly, the Court grants Defendants’ Motion to Dismiss.

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C. Exhaustion of Administrative Remedies
Finally, even if Plaintiff were to substitute the United States as the Defendant in this
action, he has failed to exhaust his administrative remedies.
The FTCA provides that an “‘action shall not be instituted upon a claim against the
United States for money damages’ unless the claimant has first exhausted his
administrative remedies.” McNeil v. United States, 508 U.S. 106, 107 (1993) (quoting 28
U.S.C. § 2675(a)). “A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within two years after such
claim accrues . . . .” 28 U.S.C. § 2401(b).
In McNeil v. United States, a prison inmate brought an action against the federal
government under the FTCA. 508 U.S. 106 (1993). The inmate alleged that the United
States Public Health Services caused him serious injuries while in the custody of the
Illinois Department of Corrections. Id. at 107. When the lawsuit was initially filed, his
administrative claim had not been denied by the government agency. Id. at 108. The
district court dismissed the inmate’s FTCA action concluding that it “lacked jurisdiction to
entertain an action ‘commenced before satisfaction of the administrative exhaustion
requirement under U.S.C. § 2675(a).’” Id. at 109 (quoting McNeil v. U.S. Public Health
Service, No. 89-C-1822, 1991 WL 9994, at *2 (N.D. Ill. Jan. 24, 1991). On appeal, the
Supreme Court held that the “FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies.” Id. at 113. Because the FTCA
requirement was not satisfied the Court found that the district court had properly
dismissed the suit. Id.
In this case, Plaintiff has failed to present any evidence that he has exhausted his
administrative remedies by filing a written administrative tort claim with the SSA.
Accordingly, this Court lacks subject matter jurisdiction over Plaintiff’s FTCA claim.

IV. CONCLUSION
For the aforementioned reasons, Defendants’ Motion to Dismiss is granted and
Plaintiff’s Complaint is dismissed in its entirety. For the same reason the Court grants
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Defendant’s Motion to Dismiss, the Plaintiff is not entitled to summary judgment.
Accordingly, Plaintiff’s Motion for Summary Judgment is denied.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: February 20, 2013

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