Overstreet v. Colvin

Filing 3

ORDER and MEMORANDUM AND RECOMMENDATION regarding 1 MOTION for Leave to Proceed in forma pauperis and Proposed Complaint filed by James K. Overstreet -Based on the information in the motion to proceed in forma pauperis, the court finds that pla intiff has adequately demonstrated his inability to prepay the required court costs. His motion to proceed in forma pauperis is therefore ALLOWED. However, IT IS RECOMMENDED that this action be DISMISSED for the reasons set forth more specifically in the attached Memorandum and Recommendation. Objections due by 1/27/2014. Signed by Magistrate Judge James E. Gates on 01/09/2014. (Baker, C.) (Additional attachment(s) added on 1/10/2014: # 1 Notice) (Baker, C.).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
4:13-CV-261-FL
JAMES K. OVERSTREET,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This pro se case is before the court on the motion to proceed in forma pauperis under 28
U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff and for a frivolity review pursuant to 28 U.S.C. §
1915(e)(2)(B). These matters were referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(A) and (B), respectively. For the reasons stated below, the court will allow
plaintiff’s motion to proceed in forma pauperis but recommend that this case be dismissed for
lack of subject matter jurisdiction.
ORDER ON IN FORMA PAUPERIS MOTION
Based on the information in the motion to proceed in forma pauperis, the court finds that
plaintiff has adequately demonstrated his inability to prepay the required court costs. His motion
to proceed in forma pauperis is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I.

Background
Plaintiff’s complaint consists of a four-page form (D.E. 1-1) completed in handwriting in

which he asserts that, following a hearing on 23 January 2013, an Administrative Law Judge

(“ALJ”) wrongfully denied him disability benefits. (Compl. 2). He seeks relief in the form of an
award of disability benefits, including past due amounts, and legal fees. (Id. 3).
II.

Discussion
A.

Legal Standards Applicable to Frivolity Review of Complaint

After allowing a party to proceed in forma pauperis, as here, the court must conduct a
frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must determine
whether the action is frivolous or malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal.
28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for
frivolousness). Although in evaluating frivolity a pro se plaintiff’s pleadings are held to “less
stringent standards” than those drafted by attorneys, White v. White, 886 F.2d 721, 722-23 (4th
Cir. 1989), the court is not required to accept a pro se plaintiff’s contentions as true, Denton, 504
U.S. at 32.

Instead, the court is permitted to “pierce the veil of the complaint’s factual

allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke,
490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional
scenarios.” Id. at 328. Provided that plaintiff’s claims are not clearly baseless, the court must
weigh plaintiff’s factual allegations in his favor in its frivolity analysis. Denton, 504 U.S. at 32.
The court must read the complaint carefully to determine if plaintiff has alleged specific facts
sufficient to support his claims. White, 886 F.2d at 724.
Under Fed. R. Civ. P. 8, a pleading that states a claim for relief must contain “a short and
plain statement of the grounds for the court’s jurisdiction . . . [and] a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1), (2). Case law
explains that the factual allegations in the complaint must create more than a mere possibility of
misconduct. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers
merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or
“naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may consider subject matter jurisdiction as part of the frivolity review. See
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question
of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”);
Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007)
(discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal).
“Federal courts are courts of limited jurisdiction and are empowered to act only in those specific
situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The
presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated
that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden
of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter
jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must
affirmatively allege the grounds for jurisdiction.

Bowman, 388 F.2d at 760.

If the court

determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P.
12(h)(3).
B.

Review of Plaintiff’s Complaint

Although plaintiff has alleged that his application for disability benefits was denied
following a hearing before an ALJ, he has not alleged that he sought administrative review of
this denial. This apparent absence of prior administrative action on his claim for disability is

fatal to it. The Social Security Act provides for judicial review only after a final decision by the
Commissioner of Social Security:
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security may allow.
42 U.S.C. ' 405(g) (emphasis added). A claim for benefits brought without exhaustion of
administrative remedies is subject to dismissal for lack of subject matter jurisdiction. See, e.g.,
Cano v. Cmm’r of Soc. Sec., No. 8:10-2400, 2010 WL 4774775, at *1 (D.S.C. 16 Nov. 2010),
adopting, 2010 WL 4780056, at *2-3 (D.S.C. 21 Sept. 2010) (report and recommendation for
dismissal of plaintiff’s claim for failure to exhaust administrative remedies before the
Commissioner of Social Security). This case should accordingly be dismissed.
III.

Conclusion
For the foregoing reasons, IT IS RECOMMENDED that this action be DISMISSED.
The Clerk shall send a copy of this Memorandum and Recommendation to plaintiff, who

shall have 14 days from service thereof to file written objections. Failure to file timely written
objections bars plaintiff from receiving a de novo review by the District Judge on an issue
covered in the Memorandum and Recommendation and, except upon grounds of plain error,
from attacking on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the District Judge.
SO ORDERED, this 9th day of January 2014.

_________________________
James E. Gates
United States Magistrate Judge