Harkey v. Colvin

Filing 13

ORDER denying 10 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. This case is hereby DISMISSED. Signed by District Judge Martin Reidinger on 03/07/2018. (brl)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:16-cv-00709-MR

LISA HARKEY,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Summary Judgment [Doc. 10] and the Defendant’s Motion for Summary
Judgment [Doc. 11].
I.

PROCEDURAL HISTORY
The Plaintiff Lisa Harkey filed an application for supplemental security

income (“SSI”) benefits on July 26, 2012, alleging an onset date of March 4,
2011. [See Transcript (“T.”) 12, 179-87]. The Plaintiff’s claim was denied
initially and on reconsideration. [T. 77-93, 95-111]. At the request of the
Plaintiff, an administrative law judge (“ALJ”) held a hearing to review the
Plaintiff’s claim on August 13, 2014. [T. 28-76]. On November 10, 2014, the
ALJ issued a decision denying the Plaintiff benefits under the Act. [T. 12-

23]. On April 7, 2016, the Appeals Council denied the Plaintiff’s request for
review, thereby making the ALJ’s decision the final decision of the
Commissioner. [T. 1-6].
On June 1, 2016, the Plaintiff, through counsel, filed a complaint for
judicial review of the Commissioner’s final decision in this Court. [Harkey v.
Colvin, No. 3:16-cv-00277-FDW (“Harkey I”), Doc. 1]. On June 8, 2016, the
Honorable Frank D. Whitney, Chief United States District Judge, granted the
Plaintiff’s motion to proceed in forma pauperis. [Harkey I, Doc. 4]. The
Plaintiff, however, did not provide a summons to the Clerk’s office within 90
days of filing of the Complaint, did not request an extension of time to do so,
and did not otherwise take any measures to effect service of her Complaint.
[Harkey I, Doc. 5]. As a result, on October 6, 2016, Judge Whitney sua
sponte dismissed the Plaintiff’s Complaint without prejudice.

[Harkey I,

Docs. 5, 6].
The Plaintiff refiled her action on October 11, 2016, and this case was
assigned to the undersigned. [Harkey v. Colvin, No. 3:16-cv-00709-MR
(“Harkey II”), Doc. 1]. On December 2, 2016, the Plaintiff filed proof of
service on the Defendant. [Harkey II, Docs. 3-5]. The Defendant filed an
Answer to the Plaintiff’s Complaint on December 22, 2016 [Harkey II, Doc.
7], and a scheduling order issued thereafter. The Plaintiff filed her motion
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for summary judgment on March 13, 2017 [Harkey II, Doc. 10], and the
Defendant filed her motion for summary judgment on May 8, 2017 [Harkey
II, Doc. 11].
II.

DISCUSSION
A claimant seeking judicial review of the Commissioner’s final decision

denying SSI benefits must file a civil action within 60 days of receiving notice
of such decision “or within such further time as the Commissioner of Social
Security may allow.” See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §
422.210(c). Absent “a reasonable showing to the contrary,” it is presumed
that such notice is received five (5) days after the date of such notice. 20
C.F.R. §§ 416.1401; 422.210(c).
The 60-day filing requirement, however, is a period of limitation rather
than a jurisdictional limit. As such, it may be subject to equitable tolling under
the appropriate circumstances. See Hyatt v. Heckler, 807 F.2d 376, 378 (4th
Cir.

1986).

Equitable

tolling

applies

only where

“‘extraordinary

circumstances beyond plaintiffs’ control [make] it impossible to file the claims
on time.’” Chao v. Virginia Dep’t of Transp., 291 F.3d 276, 283 (4th Cir.
2002) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)); see
also Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (allowing equitable
tolling only in “extraordinary” cases where circumstances beyond a
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claimant’s control cause her to miss a deadline). Equitable tolling should not
be employed to aid claimants who “failed to exercise due diligence in
preserving [their] legal rights.” Chao, 291 F.3d at 283. Further, as this Court
recently explained, the Supreme Court has held that traditional equitable
principles “do not extend to what is at best a garden variety claim of
excusable neglect.” Peeler v. Colvin, No. 3:16-CV-545-MOC-DLH, 2017 WL
64747, at *2 (W.D.N.C. Jan. 5, 2017) (quoting Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
Here, the Plaintiff’s first civil action was filed within the 60-day period.
That case, however, was dismissed without prejudice due to the Plaintiff’s
failure to prosecute the action. The Plaintiff did not appeal that dismissal,
and she did not seek an extension of time to re-file her action. Instead, the
Plaintiff commenced the present action on October 11, 2016, more than 180
days after the final decision of the Commissioner. The Plaintiff’s present
action is subject to dismissal as being untimely unless the principles of
equitable tolling can be applied.
The Plaintiff has not responded to the Commissioner’s arguments of
untimeliness and thus has made no attempt to demonstrate any
extraordinary facts which would warrant the application of equitable tolling in
this case. Upon review of the case, the Court does not find that equitable
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tolling is applicable. The Plaintiff’s first action, while timely, was dismissed
for failure to prosecute. The fact that the Plaintiff’s first, timely action was
dismissed without prejudice does not warrant the application of equitable
tolling. Christides v. Comm'r of Soc. Sec., 478 F. App’x 581, 584 (11th Cir.
2012) (declining to apply equitable tolling, noting that “the mere fact that her
complaint was dismissed without prejudice does not permit her to file a later
complaint outside the statute of limitations.”). As the Plaintiff has failed to
demonstrate any extraordinary circumstances to excuse her late filing, the
Court concludes that equitable tolling is not available to her.
For all of these reasons, the Court concludes that the Plaintiff’s
complaint was not timely filed and therefore should be dismissed.

ORDER
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion
for Summary Judgment [Doc. 10] is DENIED; the Defendant’s Motion for
Summary Judgment [Doc. 11] is GRANTED; and this case is hereby
DISMISSED.
The Clerk of Court is respectfully directed to enter a Judgment in
accordance with this Order.

Signed: March 7, 2018

IT IS SO ORDERED.
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