Howard-Bradley v. Simmons, et al

Filing 6

Memorandum Opinion and Order granting plaintiff's Motion to proceed in forma pauperis (Related Doc # 4 ), all other pending motions 2 , 3 and 5 are denied and this action is dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ERNEST HOWARD-BRADLEY,

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Plaintiff,
vs.
CAROLYN L. SIMMONS, et al.,
Defendants.

CASE NO. 4:14 CV 869
JUDGE DAN AARON POLSTER

MEMORANDUM OF OPINION
AND ORDER

Pro se Plaintiff Ernest Howard-Bradley filed this Bivens1 action against Social Security
Administration Associate Commissioner Carolyn L. Simmons, Social Security Administration
Acting Commissioner Carolyn W. Colvin, Unknown Fiduciary Agents, Unknown Fiduciary
Disbursing Agents. In the Complaint (Doc. # 1), Plaintiff asserts he was wrongfully denied
social security benefits in violation of the Fourteenth and Fifth Amendments. He seeks
monetary damages and injunctive relief.
I. BACKGROUND
Plaintiff’s Complaint contains so much legal rhetoric that it is often difficult to decipher
his allegations and causes of action. It appears Plaintiff was awarded social security disability
benefits at some point prior to 2003. On December 10, 2002, Plaintiff was found guilty of
various drug-related crimes in the Beaver County Pennsylvania Court of Common Pleas. He

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Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

was sentenced on February 12, 2003 to three to ten years imprisonment. As a result of his
incarceration for a felony offense, Plaintiff was informed on April 11, 2003 that his social
security disability benefits were terminated. He received a second letter in June 2003 informing
him that he was erroneously paid benefits in February 2003 and March 2003 and owed
$2,489.40 for the overpayment.
Plaintiff appealed the termination of his benefits. In a letter dated May 30, 1996,
Plaintiff received an apparently conflicting opinion. In pertinent part, the letter states:
Section 202(x) of the Social Security Act, as amended by PL 103387, states that beginning in February 1995, no monthly benefits
shall be paid to any individual confined in a jail, prison, other
penal institution, or correctional facility as a result of a conviction
of an offense which is punishable by a sentence of more than one
year of imprisonment, regardless of the actual sentence imposed.
After extensive development of this issue through the Bureau of
Corrections, we have determined that you were charged,
convicted, and confined to the Commonwealth of Pennsylvania,
Beaver County, for controlled substance, with intent to deliver on
February 28, 2001. This is a felony, and according to the law,
benefits are payable to you for that time period.
Your claims file will be routed to the Payment Staff to insure that
you are refunded the money that was withheld from your benefits
for any of those suspension months.
(Doc. # 1-2 at 37)(emphasis added). Plaintiff contends he unsuccessfully attempted collect back
benefits in accordance with the terms of this decision from 2006 until August 2013.
It appears Plaintiff reapplied for benefits in March 2013. On August 13, 2013, Plaintiff
received a letter from the Social Security Administration informing him that he was entitled to
receive monthly disability benefits. They stated there is a one year limit on retroactivity of
benefits, so Plaintiff could be awarded benefits beginning March 2012. The Social Security

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Administration further noted that Plaintiff was prohibited by law from receiving social security
benefits while he was incarcerated for any period longer than a month for a felony conviction.
Their records indicated Plaintiff was incarcerated from February 2003 until February 2013, and
he could not be paid benefits from March 2012 through February 2013. The Social Security
Administration then indicated it was withholding benefits due for March 2013 through July
2013 “because it was determined that you may not be capable of handling your own benefits
and may require a representative payee.” (Doc. # 1-2 at 25). Finally, the Social Security
Administration indicated it still showed an outstanding balance for the overpayment of benefits
in 2003 in the amount of $ 2,489.40, and that amount would be repaid by withholding his full
check beginning October 2013.
Plaintiff objects to these decisions of the Social Security Administration and claims the
Associate Commissioner, the Acting Commissioner, Unknown Fiduciary Agents and Unknown
Fiduciary Disbursing Agents violated his constitutional rights to due process and equal
protection. He also appears to assert claims attacking his 2003 conviction. He seek monetary
damages for the denial of his benefits, monetary damages for false imprisonment from February
2003 to February 2013, and enforcement of the May 2006 Social Security Administration
decision.
II. STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v.

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Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law
when a defendant is immune from suit or when a plaintiff claims a violation of a legal interest
which clearly does not exist. Neitzke, 490 U .S. at 327. An action has no arguable factual basis
when the allegations are delusional or rise to the level of the irrational or “wholly incredible.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.
When determining whether the Plaintiff has stated a claim upon which relief can be
granted, the Court must construe the Complaint in the light most favorable to the Plaintiff,
accept all factual allegations as true, and determine whether the Complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. The
Plaintiff’s obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
Although a Complaint need not contain detailed factual allegations, its “factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the Complaint are true.” Id. The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court in Iqbal, 556 U.S. at 677-78 , further explains the “plausibility” requirement,
stating that “a claim has facial plausibility when the Plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Furthermore, “the plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. This determination is a “context-specific task that requires the reviewing court

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to draw on its judicial experience and common sense.” Id.
III. ANALYSIS
While Plaintiff attempts to characterize this as a Bivens action, he in substance asks this
Court to review the decisions of the Social Security Administration, overturn the current
decision of the Commissioner, order the Administration to uphold the May 2006 decision of the
Commissioner and award him benefits in accordance with that decision. The District Court’s
jurisdiction to review the denial of social security benefits lies under § 405(g). See Willis v.
Sullivan, 931 F.2d 390, 396 (6th Cir. 1991). In order to obtain judicial review, an initial
determination on a claim must first be made by the Commissioner. Following the initial
determination, a dissatisfied claimant may seek reconsideration. See 20 C.F.R. §§ 404.909,
404.920. After reconsideration, a hearing before an administrative law judge (ALJ) may be
requested. See 20 C.F.R. §§ 404.933, 404.936, 404.955. After the ALJ has issued a decision,
further review may be sought before the Appeals Council. Only after the Appeals Council has
issued a decision is there a “final decision” by the Commissioner within the meaning of §
405(g). Once a final decision has been made, the claimant may then file an action in this Court
to review the Commissioner’s decision before the appropriate federal district court. See Willis,
931 F.2d at 396. Plaintiff cannot by-pass this process by filing the action under Bivens and
characterizing the decisions as a denial of due process and equal protection. The Court lacks
jurisdiction to conduct a review of his benefits absent an indication that Plaintiff followed the
appropriate appeals procedure.
Moreover, even if the Court had jurisdiction to consider this matter, Plaintiff would not
have a remedy under Bivens. In Bivens the Supreme Court recognized an implied cause of

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action for damages against federal officers to redress a constitutional violation, specifically an
alleged violation of the Fourth Amendment by federal law-enforcement agents in connection
with a warrantless search and seizure. Bivens, 403 U.S. at 389–90. The Court did so
notwithstanding the absence of a statutory right of action, finding “no special factors counseling
hesitation in the absence of affirmative action by Congress,” and no express statement from
Congress that relief should not be available under the circumstances. Id. at 396-97; see also
Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (en banc) (“Bivens was the first time the
Supreme Court created a non-statutory right of action for damages against federal employees.”).
The decision rested on a general premise that “‘where federally protected rights have been
invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies
so as to grant the necessary relief.’” Bivens, 403 U.S. at at 392 (quoting Bell v. Hood, 327 U.S.
678, 684 (1946)).
Bivens was decided in 1971, and during the next decade, the Supreme Court has only
twice extended its holding to new contexts. In Davis v. Passman, 442 U.S. 228, 230 (1979), the
Court authorized a Bivens cause of action for discrimination in public employment in violation
of the Fifth Amendment. In Carlson v. Green, 446 U.S. 14, 18 (1980), the Court recognized a
Bivens claim against federal prison officials for Eighth Amendment violations. Since Carlson,
however, the Court has not authorized a Bivens action in any other context.
Instead, the Court’s decisions have refined and narrowed the remedy available under
Bivens in several important respects. First, the Court has identified specific contexts in which
“special factors” counsel against extending the Bivens remedy, such as concerns about the
special status of the federal defendants or sensitivity to the nature of the governmental activity

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involved. See, e.g., Corrections Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (no Bivens
action against private correctional corporation acting under color of federal law); FDIC v.
Meyer, 510 U.S. 471, 473 (1994) (no Bivens action against a federal agency); United States v.
Stanley, 483 U.S. 669, 683–84 (1987) (no Bivens action for injuries arising out of or in the
course of activity incident to military service); Chappell v. Wallace, 462 U.S. 296,
299–302(1983) (same). Second, the Court has explained that the existence of a comprehensive,
alternative remedial scheme may preclude a Bivens remedy even where the alternative relief is
imperfect compared to Bivens and Congress has not explicitly declared it to be a substitute.
See, e.g., Bush v. Lucas, 462 U.S. 367, 368 (1983) (no Bivens action where a federal employer
commits a First Amendment violation because relief is available under a comprehensive
statutory scheme).
It is under this second rationale that the Supreme Court specifically held there is no
Bivens action for an alleged due process violation in connection with the denial of social
security disability benefits because relief is available under a comprehensive statutory scheme.
Schweiker v. Chilicky, 487 U.S. 412, 414 (1988). “When the design of a Government program
suggests that Congress has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its administration” no Bivens action can
be implied or should be created. Schweiker, 487 U.S. at 423. Plaintiff must pursue relief
through the Social Security appeals process.
Finally to the extent Plaintiff seeks to challenge his 2003 conviction under Bivens, his
claim must be dismissed. As an initial matter, the Defendants in this action are all employees of
the Social Security Administration. They have no apparent connection to the actions that

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resulted in Plaintiff’s conviction.
Moreover, a prisoner may not raise claims in a civil rights action if a judgment on the
merits of those claims would affect the validity of his conviction or sentence, unless the
conviction or sentence has been set aside. See Edwards v. Balisok, 520 U.S. 641, 646 (1997);
Heck v. Humphrey, 512 U.S. 477, 486 (1994). Plaintiff served his sentence. His conviction was
not overturned. He cannot attack his 2003 conviction in this civil action.
IV. CONCLUSION
Accordingly, Plaintiff Application to Proceed In Forma Pauperis (Doc. # 4) is granted,
all other pending Motions (Doc. # 2, 3, and 5) are denied, and this action is DISMISSED
pursuant to 28 U.S.C. § 1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that
an appeal from this decision could not be taken in good faith.2
IT IS SO ORDERED.

/s/Dan Aaron Polster 9/8/14
Dan Aaron Polster
United States District Judge

2

28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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