Al-Mashni v. SSI-SSD Administration
DECISION AND ORDERED, that Defendants Motion (Dkt. No. 6) is GRANTED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED without prejudice; and it is further ORDERED, that if Plaintiff wishes to proceed with this action, h e must file an amended complaint as directed above within thirty days from the date of the filing of this Decision and Order; and it is further ORDERED, that if Plaintiff fails to file an amended complaint within thirty days from the filing date of this Decision and Order, the Clerk is directed to enter Judgment indicating that this action is dismissed without prejudice, without further order of this Court. Signed by Senior Judge Lawrence E. Kahn on March 13, 2018. (Copy served via regular mail)(sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
YOUSEF M. AL-MASHNI,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
DECISION AND ORDER
Pro se plaintiff Yousef M. Al-Mashni commenced this action on October 17, 2017, in
New York Supreme Court, Broome County, against Nancy A. Berryhill, the Acting
Commissioner of the Social Security Administration (“SSA”). Dkt. No. 1-1 (“Complaint”).
Plaintiff challenges SSA’s adjustment of his benefits and seeks $5,000 in damages. Id. at 1–2.
Defendant removed the case to this Court, Dkt. No. 1 (“Notice of Removal”), and filed a motion
to dismiss for lack of subject matter jurisdiction, Dkt. No. 6 (“Motion”). Plaintiff did not
respond. Docket. For the following reasons, the Motion is granted and the Complaint is
“A case is properly dismissed for lack of subject matter jurisdiction under [Federal Rule
of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ.
P. 12(b)(1)). “The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction is ‘substantively identical’ to the 12(b)(6) standard.” Berkovitz v. Vill. of S.
Blooming Grove, No. 09-CV-291, 2010 WL 3528884, at *5 (S.D.N.Y. Sept. 3, 2010) (quoting
Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)). In considering a motion to
dismiss under Rule 12(b)(1), a court must accept as true all material factual allegations in the
complaint and draw all reasonable inferences in favor of the plaintiff. Buday v. N.Y. Yankees
P’ship, 486 F. App’x 894, 896 (2d Cir. 2012). However, the plaintiff bears the burden of
establishing that a court has subject matter jurisdiction by a preponderance of the evidence.
Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading, Inc., 697 F.3d 59, 65 (2d Cir. 2012);
see also APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (“[J]urisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings inferences favorable
to the party asserting it.”). A court “may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay
statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110
(2d Cir. 2004).
“Pursuant to 42 U.S.C. § 405(g), an individual must obtain a ‘final decision of the
Commissioner’ before a federal court can review Social Security benefit determinations.”
Iwachiw v. Massanari, 125 F. App’x 330, 331 (2d Cir. 2000). Though the term “final decision”
is not defined in the Social Security Act, Defendant has promulgated extensive regulations that
impose a four-step administrative process in order to reach a “final decision.”
First, a claimant files an application for benefits and receives an
initial determination. 20 C.F.R. § 404.902. Second, if a claimant is
dissatisfied with the initial determination, he may seek
reconsideration by filing a written request within 60 days. 20 C.F.R.
§§ 404.907, 404.909(a)(1). The reconsideration determination is
binding unless a claimant requests a hearing before an administrative
law judge (“ALJ”) within 60 days of receiving notice of the
reconsideration determination. 20 C.F.R. §§ 404.921(a),
404.933(b)(1). If the claimant is dissatisfied with the ALJ’s hearing
decision, he may request review by the Appeals Council within 60
days of receiving notice of the hearing decision. 20 C.F.R.
§§ 404.967, 404.968(a)(1).
Escalera v. Comm’r of Soc. Sec., 457 F. App’x 4, 6 (2d Cir. 2011).
Plaintiff has not established that he satisfied these requirements prior to filing suit. The
Complaint does not describe any of the steps that he did or did not take to exhaust his
administrative remedies. In addition, Raymond Egan, SSA’s Assistant Regional Commissioner
for Management and Operations Support, attests that SSA reduced Plaintiff’s benefits on
May 30, 2017, which Plaintiff challenged on June 12, 2017. Dkt. No. 6-1 (“Egan Declaration”)
¶¶ 4–5. SSA denied Plaintiff’s request for reconsideration, id. ¶ 5, but Plaintiff did not appeal this
determination to an ALJ, as required by 20 C.F.R. §§ 404.921(a), 404.933(b)(1). In turn, Plaintiff
also has not received a determination from SSA’s Appeals Council. Therefore, Defendant has not
made a final decision with regard to Plaintiff’s benefits, and the Complaint must be dismissed for
lack of subject matter jurisdiction. See Iwachiw, 125 F. App’x at 331 (“Thus, because Iwachiw’s
appeal was not from a final decision of the Commissioner, the district court correctly concluded
that it lacked jurisdiction to hear his suit.”).
However, in light of Plaintiff’s pro se status, the Court will provide thirty days within
which he may file an amended complaint. Any amended complaint submitted by Plaintiff in
response to this Decision and Order must set forth the steps that he took in order to exhaust his
administrative remedies, or why the exhaustion requirement should be waived in this instance.
Plaintiff’s amended complaint, which shall supersede and replace in its entirety the Complaint,
must be a complete pleading which sets forth all of the claims that Plaintiff wants this Court to
consider as a basis for awarding relief.
Plaintiff is advised that his failure to file an amended complaint within thirty days of the
filing date of this Decision and Order will result in dismissal of this action without prejudice
without further order of the Court.
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion (Dkt. No. 6) is GRANTED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED without prejudice;
and it is further
ORDERED, that if Plaintiff wishes to proceed with this action, he must file an amended
complaint as directed above within thirty days from the date of the filing of this Decision and
Order; and it is further
ORDERED, that if Plaintiff fails to file an amended complaint within thirty days from
the filing date of this Decision and Order, the Clerk is directed to enter Judgment indicating that
this action is dismissed without prejudice, without further order of this Court; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all of
the parties in accordance with the Local Rules.
IT IS SO ORDERED.
March 13, 2018
Albany, New York
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