Jones v. Commissioner of Social Security

Filing 20

DECISION AND ORDER. This action is dismissed with prejudice due to Plaintiff's failure to comply with the Courts prior Decision and Order [#14]. The Clerk of the Court is directed to close this action. The Court hereby certifies, pursuant to 2 8 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appe al as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.Signed by Hon. Charles J. Siragusa on 7/25/18. Copy of this NEF and decision and order mailed to pro se plaintiff at 150 VanAuker Street, Apt 6E, Rochester, NY 14608 (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RUFUS JONES,
Plaintiff,
-vs-

DECISION and ORDER

COMMISSIONER OF SOCIAL SECURITY,
MONROE COUNTY DEPARTMENT OF
HUMAN SERVICES,
Defendant.

17-CV-6558 CJS

INTRODUCTION
This is an action by Plaintiff to challenge an April 17, 2017, decision of the Social
Security Administration’s Appeals Council, pursuant to 42 U.S.C. § 405(g). The Court
previously ordered Plaintiff to file an amended complaint within thirty days, and indicated
that it would dismiss the action if he failed to do so. Plaintiff failed to comply with the
Court’s Order, and the action is therefore dismissed.
BACKGROUND
On December 12, 2017, the Court issued a Decision and Order (Docket No. [#14])
setting forth the lengthy and unusual procedural history of this action. The reader is
presumed to be familiar with the facts set forth therein. At the conclusion of the Decision
and Order [#14], the Court stated in pertinent part:
[I]t is not entirely clear what Plaintiff is complaining about with regard to the
Appeals Council’s April 17, 2017 decision. It appears, however, that
Plaintiff is complaining that the Commissioner improperly found him eligible
to receive both SSI and SSDI benefits, and/or that the Commissioner

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improperly processed his SSI back payment prior to any SSDI back
payment, in order to facilitate recoupment of the interim assistance
reimbursements by Monroe County. If that is what Plaintiff is maintaining,
his claim lacks merit, since the Commissioner did nothing wrong. Indeed,
Plaintiff applied for both SSI and SSDI benefits, and the Second Circuit has
expressly held that the Commissioner’s policy of processing SSI back
payments before SSDI payments, in order to maximize reimbursements to
states for interim assistance payments, is a proper exercise of the
Commissioner’s discretion and does not violate 42 U.S.C. § 407. White v.
Bowen, 835 F.2d 974, 978-979 (2d Cir. 1987); see also, Guadamuz v.
Bowen, 859 F.2d 762, 770 (9th Cir. 1988) (favorably discussing the Second
Circuit’s ruling in White v. Bowen).
Nevertheless, the Court will grant Plaintiff an opportunity to clarify the
nature of his claim concerning the Appeals Council’s April 17, 2017
decision, by filing an amended complaint[.]
***
Accordingly, it is hereby ORDERED that . . . this action shall be dismissed
unless, within thirty (30) days of the date of this Decision and Order, Plaintiff
files an amended complaint that clarifies the nature of his objection to the
Appeals Council’s decision dated April 17, 2017; such amended
complaint shall not exceed three (3) pages in length, which is more
than sufficient for Plaintiff to succinctly explain the nature of his
claim; Plaintiff may also attach a copy of the Appeals Council’s April 17,
2017 decision and any ALJ decision to which the Appeals Council’s
decision specifically refers;
Along with the amended complaint, Plaintiff shall file a new motion for leave
to proceed in forma pauperis; such new application shall include Plaintiff’s
monthly income from all sources, including any type of government
benefits, as well as the monthly income of any members of Plaintiff’s
household (such application must be either typed or completed in clearly
legible handwriting); the prior order [#5] granting Plaintiff leave to proceed in
forma pauperis is vacated inasmuch as it is now clear that the Court did not
have accurate or sufficient information upon which to make the necessary
inquiry under 28 U.S.C. § 1915(e)(2) when it issued that order;

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In the event that Plaintiff fails to file an amended complaint and new
application to proceed in forma pauperis within thirty (30) days of the date
of this Decision and Order, the Clerk of the Court is directed to close this
action without further order of the Court; and [in] the event that the action is
dismissed due to Plaintiff’s failure to file an amended complaint and new
application to proceed in forma pauperis as ordered above, the Court
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
this Order would not be taken in good faith, and leave to appeal to the Court
of Appeals as a poor person is denied. Coppedge v. United States, 369
U.S. 438 (1962). Further requests to proceed on appeal as a poor person
should be directed, on motion, to the United States Court of Appeals for the
Second Circuit, in accordance with Rule 24 of the Federal Rules of
Appellate Procedure.
Decision and Order [#14] filed December 12, 2017.
Plaintiff, who is an experienced pro se litigator, did not file an amended complaint
but instead, filed an interlocutory appeal with the United States Court of Appeals for the
Second Circuit. Plaintiff filed that appeal on January 4, 2018, which was 22 days after
this Court issued its Decision and Order [#14]. On May 17, 2018, the Second Circuit
dismissed Plaintiff’s appeal as lacking “an arguable basis in either law or in fact.” On July
9, 2018, the Mandate issued, and as of today’s date fifteen more days have elapsed.
Putting aside the time that Plaintiff’s interlocutory appeal was pending, more than
thirty days have elapsed since this Court directed Plaintiff to file an amended complaint.
Plaintiff has not complied with the Court’s order, and has not requested any extension of
the deadline. Accordingly, the action is dismissed with prejudice.
CONCLUSION
This action is dismissed with prejudice due to Plaintiff’s failure to comply with the
Court’s prior Decision and Order [#14]. The Clerk of the Court is directed to close this

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action. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith, and leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to
the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of
the Federal Rules of Appellate Procedure.
SO ORDERED.

DATED:

July 25, 2018
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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