Gerber v. United States Federal Social Security Administration

Filing 3

ORDER DISMISSING CASE without Prejudice. Signed by District Judge Martin Reidinger on 1/25/12. (Pro se litigant served by US Mail.)(nll)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12cv007
PAUL GERBER,

)
)
Plaintiff,
)
)
vs.
)
)
)
UNITED STATES FEDERAL SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)
________________________________ )

ORDER

THIS MATTER comes before the Court upon a complaint [Doc. 1]
(“Complaint”) filed by Plaintiff, as well as an Application to Proceed In Forma
Pauperis [Doc. 2] (“IFP Application”). For the reasons explained below, the
Court will dismiss Plaintiff’s Complaint without prejudice because Plaintiff has
failed to first exhaust his administrative remedies.
It is incumbent upon this Court to sua sponte address the question of
whether it has subject matter jurisdiction to decide a case where the facts give
rise to such question, even if no party has raised the issue. Here, Plaintiff has
named the “United States Federal Social Security Administration” as the only
named Defendant. Plaintiff’s claim against Defendant is based on the sole
allegation that his Social Security retirement benefits check was supposed to

be deposited into his Bank of America checking account on October 3, 2011,
that the check was not deposited until nine days later on October 12, 2011,
and that an employee with the Social Security Administration told Plaintiff that
the check was mistakenly deposited into someone else’s bank account in
Ohio, Georgia. Based on the foregoing, Plaintiff alleges that he is bringing
a claim under the “Federal Tort Claims Act, for negligence and tortious
conduct,” and Plaintiff seeks $75,000 in damages “so I can at least gain back
some of my dignity the defendant took from me, and the incredible emotional
damage they caused, that my words today, barely did justice to.” (Compl. pp.
1, 4).
Two elements are required to establish federal jurisdiction to review
actions of the Commissioner of Social Security with regard to social security
benefits: (1) a plaintiff must exhaust his administrative remedies, and (2) the
Commissioner must issue a final decision. See Pohlmeyer v. Secretary of
Health & Human Servs., 939 F.2d 318, 320 (6th Cir. 1991) (citing Mathews v.
Eldridge, 424 U.S. 319, 327–29 (1976)). Before plaintiff may obtain judicial
review of a claim for benefits, he must exhaust the four-step administrative
process in the Social Security Administration: (1) initial determination; (2)
reconsideration; (3) a hearing before an administrative law judge; and, (4)
Appeals

Council

review.

See

20
-2-

C.F.R.

§§

404.900(a)

(1)-(4);

416.1400(a)(1)-(4). When a claimant has completed these four steps, the
agency “will have made [its] final decision” and the claimant “may request
judicial review by filing an action in a Federal district court.”

See §§

404.900(a)(5); 416.1400(a)(5).
Here, Plaintiff has not alleged that he first exhausted his administrative
remedies by seeking an initial review with the Social Security Administration
on his claim for negligence and tortious conduct based on the late payment
of his retirement benefits.

He has neither shown that he has sought

administrative review nor has he presented to this Court an administrative
determination that it can review. Accordingly, the court will dismiss this action.
Such dismissal, however, will be without prejudice so that Plaintiff may pursue
such administrative remedies as may be available.
IT IS THEREFORE ORDERED that:
1.

This action is DISMISSED without prejudice;

2.

The Clerk of Court is DIRECTED to CLOSE the case and send a
copy of this Order to Plaintiff at his address of record.

IT IS SO ORDERED.

Signed: January 25, 2012

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