Ortiz-Diaz v. Social Security
MEMORANDUM AND ORDER: The Court grants 30 days within which to file an amended complaint. Each plaintiff must submit his or her own completed and signed application to proceed in forma pauperis. The complaint is dismissed without prejudice fo r lack of subject matter jurisdiction. All proceedings shall be stayed for 30 days. If Plaintiffs fail to replead within 30 days as directed by this Order, judgment dismissing the complaint withoutprejudice shall enter. The Court certifies pursuant t o 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO Ordered by Judge William F. Kuntz, II on 2/6/2018. (Tavarez, Jennifer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN CLERK'S OFFICE
US DISTRICT r.OURT E.D.N.Y.
JOSE LUIS ORTIZ-DIAZ,
MELODY ORTIZ-DIAZ, and
FEB u7 2013
MEMORANDUM & ORDER
WILLIAM F. KUNTZ, II, United States District Judge:
On December 27, 2017, the Court received a prose complaint ostensibly from Jose Luis
Ortiz-Diaz, Melody Ortiz-Diaz, and Ricardo Ortiz-Diaz ("Plaintiffs"). However, only Jose Luis
Ortiz-Diaz signed the complaint and submitted an application to proceed informa pauperis
("IFP"). If they wish to proceed in this action, Plaintiffs are directed to file an amended
complaint and individual IFP applications within 30 days of the date of this Order.
The complaint names "Social Security," with an address at 1871 Rockaway Parkway in
Brooklyn, as the sole defendant. The complaint does not provide any basis for this Court's
jurisdiction over the action and states that the amount in controversy is $5,527.80. ECF No. 1.
("Compl.") at 5. Liberally construing the complaint and reading between the lines, the Court
recognizes the following factual allegations.
Plaintiffs receive monthly letters from the Social Security office regarding repayment of
past overpayments. Id. at 5. Plaintiffs requested a waiver to lower the amount of repayment, and
have made multiple trips to the office. Id. at 5-6. Despite that request, Plaintiffs "recieve [sic]
another letter the following [month] indicating that we owe that amount again." Id at 5. The
letters threaten to "take monies from us if we do not go to the office to solve this matter." Id at
6. Plaintiffs state: "We have been harressed [sic] constantly." Id. at 5. The complaint does not
request any specific relief.
Standard of Review
Title 28, section 1915(e)(2)(B) of the United States Code provides that a district court
"shall dismiss" an in forma pauperis action if "the court determines that ... the action ... (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief." Moreover, a plaintiff
seeking to bring a lawsuit in federal court must establish that the court has subject matter
jurisdiction over the action. If the court "determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Rule 8 of the Federal
Rules of Civil Procedure requires a plaintiff to provide "( 1) a short and plain statement of the
grounds for the court's jurisdiction ... ; (2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief
in the alternative or different types of relief." Fed. R. Civ. P. 8(a). Rule 8 "demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A complaint must contain "sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. (internal quotations and citations omitted).
"[A] prose 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)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Accordingly, a court must "read the
pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that
they suggest."' McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v.
Hopkins, 14 F.3d 878, 790 (2d Cir. 1994)). If a liberal reading of the complaint "gives any
indication that a valid claim might be stated," the court must grant leave to amend the complaint.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Gomez v. USAA Fed Sav. Bank, 171
F .3d 794, 795 (2d Cir. 1999).
The caption of the complaint includes the names of three individuals, but only one of
them has signed the complaint or submitted an application to proceed IFP. All pro se plaintiffs
in a lawsuit must sign the complaint. See Fed. R. Civ. P. 1 l(a) ("Every pleading, written motion,
and other paper must be signed by at least one attorney of record in the attorney's name-or by a
party personally if the party is unrepresented."). A non-attorney appearing prose may not
represent another prose litigant. See Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)
("[B]ecause prose means to appear for one's self, a person may not appear on another person's
behalf in the other's cause"). An exception to this rule applies to Social Security appeals, in
which parents may proceed on behalf of their minor children. See Rekha v. United States, 15 CV
7271, 2017 WL 3891647, at *2 (E.D.N.Y. Aug. 3, 2017), report and recommendation adopted,
15 CV 7271, 2017 WL 3887875 (E.D.N.Y. Sept. 5, 2017) (Mauskopf, J.) (collecting cases). If
the other named plaintiffs are under 18 years of age, Jose Luis Ortiz-Diaz may file on their
behalf, but he must affirm that they are minors, indicate that he is appearing on their behalf, and
provide only their initials, not their full names.
Nature of the Claim
The complaint as submitted fails to conform to the dictates of Rule 8, in that it neither
establishes a basis for the Court's jurisdiction nor presents a cognizable demand for relief. It
appears that Plaintiffs owe money to the Social Security Administration for past overpayments of
benefits. Plaintiffs apparently believe that they are entitled to a reduction in the repayment
amount. However, they have not indicated the steps they have taken to resolve this claim with
the agency in order to exhaust their administrative remedies prior to turning to federal court.
The Social Security Act provides procedures for determining eligibility for social
security benefits within the agency and includes multiple levels for individuals to seek review of
unfavorable decisions. Only after an individual has exhausted all levels of review within the
agency may he or she seek federal court review of "any final decision of the Commissioner of
Social Security." 42 U.S.C. § 405(g). "Exhaustion is generally required as a matter of
preventing premature interference with agency processes, so that the agency may function
efficiently and so that it may have an opportunity to correct its own errors, to afford the parties
and the courts the benefit of its experience and expertise, and to compile a record which is
adequate for judicial review." Weinberger v. Sa/fl, 422 U.S. 749, 765 (1975). In this case,
Plaintiffs have not alleged that they have received a final decision from the Commissioner, as
would be required by 42 U.S.C. § 405(g) in order to file a federal lawsuit related to Social
Security benefits. Accordingly, this Court does not have subject matter jurisdiction over the
action and the complaint must be dismissed.
Leave to Amend
In light of Plaintiffs' prose status, the Court grants 30 days within which to file an
amended complaint. The amended complaint must be captioned, "Amended Complaint," and
shall bear the same docket number as this Order. The caption must indicate the intended plaintiff
or plaintiffs in the action, and each of those indi viduals must sign the amended complaint. The
amended complaint must identify a basis for federal jurisdiction and a demand for relief. Should
Plaintiffs wish to challenge a decision by the Social Security Administration, they must establish
that they have an appealable final decision from the Commissioner. Moreover, each plaintiff
must submi t his or her own completed and signed appl ication to proceed informa pauperis.
For the reasons stated above, the complaint is dism issed without prej udice for lack of
subject matter jurisdiction. All proceed ings shall be stayed for 30 days. If Plaintiffs fai l to
replead within 30 days as directed by this Order, judgment dismissing the complaint without
prejudice shal l enter. The Court certifies pursuant to 28 U .S.C. § I 9 l 5(a)(3) that any appeal
would not be taken in good faith and therefore informa pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
HON. WILLIA ~ ."'~~TZ, II
UNITED ST ATES ~ 1 RICI JUDGE
Dated: Brooklyn, New York
February 6, 20 18
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