Coleman v. Commissioner of Social Security

Filing 30

ORDER adopting 28 Report and Recommendations to appoint pro bono counsel for F.B. in this matter. Within thirty days after appointment, pro bono counsel shall file objections, if any, to the Report-Recommendation (Dkt. No. 17 ) recommending that the Commissioner's motion to dismiss (Dkt. No. 11 ) be granted; the Commissioner shall have fourteen days to respond to any objections. Signed by Judge Brenda K. Sannes on 5/17/17. (Copy served via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ROCHELLE BROOKS, formerly
known as Rochelle Coleman, for F.B.
Plaintiff,
v.

5:15-CV-0148 (BKS/CFH)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
Appearances:
Rochelle Brooks
Syracuse, NY
Plaintiff, pro se
Richard S. Hartunian, United States Attorney
Joshua L. Kershner, Special Assistant United States Attorney
Social Security Administration
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, NY 10278
For Defendant
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Plaintiff Rochelle Brooks filed this action, on behalf of her daughter F.B., under 42
U.S.C. §§ 405(g) seeking review of Commissioner of Social Security’s denial of her application
for Supplemental Security Income Benefits for F.B. Dkt. No. 1. Defendant filed a motion to
dismiss on May 18, 2015. Dkt. No. 11. This matter was referred to United States Magistrate
Judge Christian F. Hummel for a Report-Recommendation. Dkt. No. 3; Local Rule 73.2(d). On

June 15, 2016, after reviewing the parties’ motion papers, Dkt. Nos. 11, 14 and 16, Magistrate
Judge Hummel issued a Report-Recommendation recommending that the Commissioner’s
motion to dismiss be granted. Dkt. No. 17, p. 9. Magistrate Judge Hummel advised the parties
that under 28 U.S.C. § 636(b)(1), they had “14 days within which to file written objections” to
the Report-Recommendation and that “failure to object to th[e] report within 14 days will
preclude appellate review.” Id. (citing Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e)). Plaintiff filed objections to the ReportRecommendation on June 28, 2016 (Dkt. No. 18) and Defendant filed a response to the
objections (Dkt. No. 19). On November 9, 2016, the undersigned referred this matter to
Magistrate Judge Hummel for an inquiry and recommendation as to whether “Rochelle Coleman,
a non-attorney parent who brings this action on behalf of her child, ‘has a sufficient interest in
the case and meets basic standards of competence’ to bring this action ‘without representation by
an attorney.’” Dkt. No. 21 (quoting Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002)). On
January 23, 2017, a hearing was conducted by Magistrate Judge Hummel and on April 19, 2017,
Magistrate Judge Hummel issued a Report-Recommendation recommending that pro bono
counsel be appointed to represent F.B. in this matter. Dkt. No. 28.
DISCUSSION
The Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id.
2

Neither of the parties has raised any objection to Magistrate Judge Hummel’s ReportRecommendation. The Court has reviewed the Report-Recommendation for clear error and
found none. Accordingly, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 28) is
ADOPTED in all respects; and it is further
ORDERED that pro bono counsel be appointed to represent F.B. in this matter; and it is
further
ORDERED that within thirty days after appointment, pro bono counsel shall file
objections, if any, to the Report-Recommendation (Dkt. No. 17) recommending that the
Commissioner’s motion to dismiss (Dkt. No. 11) be granted; and it is further
ORDERED that the Commissioner shall have fourteen days to respond to any
objections; and it is further
ORDERED that the Clerk serve copies of this Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 17, 2017

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