Doty v. Commissioner of Social Security

Filing 9

ORDER adopting Report and Recommendation 4 .Case is Dismissed for want of jurisdication and Terminated on the docket of this Court. Signed by Judge Herman J. Weber on 8/11/11. (Attachments: # 1 cert.recpt) (do1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

IAN M. DOTY,
Plaintiff
v.

C-1-11-424

COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant

This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 4),
plaintiff’s objections (doc. no. 6), defendant’s response (doc. no. 7) and
plaintiff’s response thereto (doc. no. 8). The Magistrate Judge concluded
that this Court still lacks federal jurisdiction and therefore recommended
that plaintiff’s Complaint should be dismissed for lack of jurisdiction.
Plaintiff objects to the Judge's Report and Recommendation on the
grounds that his findings are contrary to law. Plaintiff requests that this
Court recognize that he has attempted in good faith to exhaust his
administrative remedies.

Plaintiff further seeks resumption of his

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benefits while he is incarcerated and back pay for the months he did not
receive benefits.
Defendant argues that plaintiff admits in his Complaint that he has
not fully availed himself of the four-step administrative review process
that is required to exhaust one’s administrative remedies before filing a
complaint in federal court. Furthermore, defendant argues there has
been no final decision in this case by the Commissioner, as required by
42 U.S.C. § 405(g). In the absence of exhaustion of the administrative
review process and a final decision by the Commissioner, this Court is
without jurisdiction over plaintiff’s complaint.
CONCLUSION
Upon a de novo review of the record, especially in light of plaintiff’s
objections, the Court finds that plaintiff’s objections have either been
adequately addressed and properly disposed of by the Judge or present
no particularized arguments that warrant specific responses by this
Court. The Court finds that the Magistrate Judge has accurately set forth
the controlling principles of law and properly applied them to the
particular facts of this case and agrees with the Judge.

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Accordingly, the Court hereby ADOPTS AND INCORPORATES BY
REFERENCE HEREIN the Report and Recommendation of

the United

States Magistrate Judge (doc. no. 4). Plaintiff’s Complaint (doc. no. 3)
is DISMISSED for lack of jurisdiction and this case is TERMINATED on the
docket of this Court.
For the foregoing reasons, this Court CERTIFIES pursuant to 28
U.S.C. § 1915(a)(3) that an appeal of this Order would not be taken in
good faith. See, McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
The Court therefore DENIES plaintiff leave to proceed in forma pauperis
in the United States Court of Appeals for the Sixth Circuit.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court