Nagel v. Killroy et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 to the extent they are not inconsistent with this order. The Complaint 2 is DISMISSED with prejudice. Any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 9/30/2013. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

MERIAM NAGEL,

CV 13-56-GF-DWM-RKS

Plaintiff,
vs.

ORDER

MICHAEL KILROY and MEMBERS
OF THE ADMINISTRATIVE REVIEW
BOARD,
Defendants.

Meriam Nagel brings this action on allegations that Administrative Law
Judge Michael Kilroy and members of an administrative review board violated her.
civil rights by improperly denying her Social Security benefits. (Doc. 3 at 4-6.)
As Ms. Nagel is a pro se litigant proceeding in forma pauperis, the matter was
referred to Magistrate Judge Keith Strong for screening pursuant to 28 U.S.C.
§§ 1915, 1915A and Local Rule 72.2. Judge Strong issued Findings and a
Recommendation regarding Ms. Nagel's Complaint on July 10,2013. (Doc. 4.)
Judge Strong recommends that Ms. Nagel's Complaint be dismissed with
prejUdice. (ld. at 8.) Pursuant to 28 U.S.C. § 636(b)(1)(C), objections to Judge
Strong's Findings and Recommendation were originally due July 29, 2013. Ms.
Nagel sought, (doc. 7), and was granted, (doc. 8), an extension of time in which to
file her Objections. She timely filed her Objections on August 26,2013, before

the extended deadline. (Doc. 9.)
When a party objects to any portion of the Findings and Recommendation
issued by a Magistrate Judge, the district court must make a de novo determination
regarding that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1)(B);
McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309,1313
(9th Cir.1981). None of Ms. Nagel's objections rejoin the jurisdictional analysis
Judge Strong related in his Findings and Recommendation. Even so, after de novo
review of Judge Strong's Findings and Recommendation and Ms. Nagel's
Objections to the same, I agree with Judge Strong's conclusion that Ms. Nagel's
Complaint must be dismissed with prejudice.
Ms. Nagel's Complaint alleges claims under 42 U.S.C. § 1983. (Doc. 3 at
4.) Section 1983 codifies the provisions of the Civil Rights Act of 1871 which
create a cause of action against state officials for allegations of a deprivation under
color of state authority of any right guaranteed by the Fourteenth Amendment. See
Monroe v. Pape, 365 U.S. 167, 171 (1961). The Defendants named in this matter,
however, are federal officials. (Doc. 3 at 5.) Judge Strong therefore construed
Ms. Nagel's claims as raised under Bivens v. Six Unknown Named Agents 0/ the
Federal Bureau o/Narcotics, 403 U.S. 388 (1971). (Doc. 4 at 4 n.l.) ABivens
action cannot form the jurisdictional basis for a claim asserting that Social
Security benefits were wrongfully denied. Schweiker v. Chilicky, 487 U.S. 412,

424-25 (1988). A plaintiff alleging Social Security benefits were wrongfully
denied is limited to those remedies specifically provided for in the Social Security
Act. Id.
The judicial review provision of the Social Security Act, codified at 42
U.S.C. § 405(g) provides a roadmap for Ms. Nagel to properly navigate presenting
her claim to this Court. For the Court to exercise subject matter jurisdiction over
these factual circumstances, Ms. Nagel must file a complaint pursuant to the
strictures of § 405(g) and name Carolyn W. Colvin, the acting Commissioner of
Social Security as the defendant.
In accordance with the foregoing, IT IS ORDERED that Judge Strong's
Findings and Recommendation, (doc. 4), are ADOPTED to the extent they are not
inconsistent with this order. Ms. Nagel's Complaint, (doc. 2), is DISMISSED
with prejudice.
IT IS FURTHER ORDERED that the docket shall reflect the Court's
certification pursuant to Fed.R.App.P. 24 (a)(3)(A) that any appeal of this decision
would not be taken in good faith. The record is plain that Ms. Nagel's Complaint
lacks arguable substance in law or fact.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a
separate document judgment in favor of Defendants and against Plaintiff and shall
close this case.

DATED this

~ay of September 2013.

loy, District Judge
es D strict Court