Moore v. Commissioner of Social Security

Filing 13

ORDER denying 12 Motion to Transfer Venue and for Recusal - This motion filed by pro se plaintiff was improperly classified as a motion for a more definite statement. In essence it was a motion to transfer this social security appeal to t he U.S. District Court for the Southern District of NY ("SDNY"), which had originally transferred the case to this court. Moreover, this court liberally construed the motion as one for recusal. For the reasons set forth in the ATTACHED WR ITTEN SUMMARY ORDER, Plaintiff's motion requesting transfer of the instant action back to the SDNY and recusal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and, therefor e, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order to pro se plaintiff. The briefing schedule previously set by the court on April 8, 2013 remains in effect. SO ORDERED by Judge Dora Lizette Irizarry on 4/22/2013. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
ANISHA M. MOORE, pro se,
:
:
Plaintiff,
:
:
-against:
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
----------------------------------------------------------------x

SUMMARY ORDER
13-cv-1867(DLI)

DORA L. IRIZARRY, United States District Judge:
Pro se Plaintiff Anisha M. Moore (“Plaintiff”) filed the instant action seeking review of
the Commissioner of Social Security’s decision regarding Plaintiff’s application for disability
benefits. (Complaint, Doc. Entry No. 2.) The Court construes Plaintiff’s claim as an action
brought pursuant to the Social Security Act, 42 U.S.C. §§ 405(g) and/or 1383(c)(3). Plaintiff
initiated this action by filing a complaint in the U.S. District Court for the Southern District of
New York (“SDNY”) on February 25, 2013. The Hon. Loretta A. Preska, U.S. District Judge for
the Southern District of New York, transferred this action to this Court by order dated April 3,
2013. (Doc. Entry No. 4.) On April 15, 2013, Plaintiff filed a motion requesting that the action
be transferred back to the SDNY. (See Pl. Mot. to Transfer Back to the SDNY (“Pl. Mot.”),
Doc. Entry No. 12.) For the reasons set forth below, Plaintiff’s motion is denied.
An action filed pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3) may be brought only in
“the district court of the United States for the judicial district in which the plaintiff resides, or has
his principal place of business . . . ” 42 U.S.C. §§ 405(g), 1383(c)(3) (“The final determination
of the Commissioner of Social Security after a hearing under [§ 1383(c)(1)] shall be subject to
judicial review as provided in section 405(g).”).

1

Plaintiff alleges that she resides in Richmond County, New York and avers she is not
employed. (Complaint ¶ I(A); Request to Proceed In Forma Pauperis, Doc Entry No. 1.)
Plaintiff is not a resident in the SDNY and, therefore, the SDNY does not have subject matter
jurisdiction over Plaintiff’s social security appeal. The instant action was properly transferred to
this district, because Plaintiff resides in this district. Accordingly, Plaintiff’s request for the
action to be transferred back to the SDNY is denied.
The Court is mindful that pro se submissions, “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).

Thus, the Court interprets Plaintiff’s motion “to raise the strongest

arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir.
2006) (emphasis omitted). After reviewing Plaintiff’s reasons for requesting transfer back to the
SDNY, and in the light of the liberal construction the Court affords pro se litigants, the Court
construes Plaintiff’s motion as a motion for recusal under 28 U.S.C. § 455(a).
Section 455(a) of title 28 of the United States Code provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” The Second Circuit has stated that, in evaluating a
motion for recusal, the court must ask the following question: “[w]ould a reasonable person,
knowing all the facts, conclude that the trial judge’s impartiality could reasonably be questioned?
Or phrased differently, would an objective, disinterested observer fully informed of the
underlying facts, entertain significant doubt that justice would be done absent recusal?” United
States v. Amico, 486 F. 3d 764, 775 (2d Cir. 2007) (internal citations omitted).
Here, Plaintiff states she is requesting transfer back to the SDNY because “she ruined my
life” and “[t]he Judge [has] a history of sending people to the death chambers.” (Pl. Aff. in

2

Supp. of Mot. at 3.) In addition, she states “I need my . . . medical bills, tomb stone paid. I’m a
human being not a[n] animal.” (Id. at 1.) First, the Court has not sentenced anyone to death in
any matter. Second, in a social security appeal such an outcome is not even a remote possibility.
Thus, Plaintiff does not set forth any reasons that the Court’s impartiality in this action might
reasonably be questioned.
Furthermore, it is the custom of this district to assign all pro se matters to the same judge,
because that judge is familiar with the pro se litigant and her history with the court. Plaintiff
previously brought two actions before this Court, the outcomes of which do not serve as cause
for recusal.
On May 15, 2012, Plaintiff brought an action seeking review of changes in her
Supplemental Security Income and her deceased mother’s workers’ compensation benefits. See
Moore v. Comm’r of Social Security, 12-cv-2454 (DLI).

On August 10, 2012, the Court

construed Plaintiff’s August 8, 2012 letter as a Notice of Voluntary Dismissal and dismissed the
case without prejudice. (See Aug. 10, 2012 Order, 12-cv-2454; Pl. Aug. 8, 2012 Letter, Doc.
Entry No. 18 (“I respectfully thank you for understanding and closing my case.”), 12-cv-2454.)
On June 12, 2012, Plaintiff brought an action for monetary damages against attorneys who had
represented her mother. See Moore v. Angiuli & Gentile, LLP et al., 12-cv-2966 (DLI) (LB). On
August 9, 2012, the Court dismissed the case for lack of subject matter jurisdiction, without
prejudice to pursue the matter in Kings County Surrogate’s Court. (See Doc. Entry No. 5, 12-cv2966.)
Accordingly, Plaintiff’s request for recusal is denied. By Order dated April 8, 2013,
Plaintiff’s in forma pauperis application for the instant action was granted and a briefing

3

schedule was set.

(See Doc. Entry No. 8.)

The instant action will be adjudicated as

expeditiously as possible.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion requesting transfer of the instant action
back to the SDNY and recusal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith and, therefore, in forma pauperis status is
denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
DATED: Brooklyn, New York
April 22, 2013
____________/s/_____________
DORA L. IRIZARRY
United States District Judge

4