Collins v. Commissioner of Social Security

Filing 33

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED THAT: (1) Plaintiff's motions to reopen the case (Docs. 31 , 32 ) be DENIED; (2) The Court certify that for the foregoing reasons an appeal of any Order adopting this Report and Recommend ation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Objections to R&R due by 11/2/2021. Signed by Magistrate Judge Karen L. Litkovitz on 10/18/2021. (kh) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MACHELLE COLLINS,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No. 1:18-cv-268
Black, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

This matter is before the Court on plaintiff’s motions to reopen the case. (Docs. 31, 32).
On April 20, 2020, the undersigned issued a Report and Recommendation to the District Judge
recommending that the Court grant the Commissioner’s motion to enter an order and judgment
reversing the final decision of the Commissioner of Social Security, pursuant to the fourth
sentence of 42 U.S.C. § 405(g), with remand to the Commissioner for further administrative
proceedings. (Doc. 21). Plaintiff was advised that she had 14 days to file objections to the
Report and Recommendation. (Id. at PAGEID 127). Plaintiff failed to file any objections, and
on June 16, 2020, the District Judge adopted the Report and Recommendation and entered
judgment in this case. (Docs. 23, 24). Three months later, plaintiff filed a motion opposing the
remand and her opposition to the motion to remand. (Docs. 25, 26).
On November 20, 2020, the undersigned issued a Report and Recommendation to the
District Judge recommending that the Court deny plaintiff’s motion opposing the remand. (Doc.
27). Construing plaintiff’s motion as a request to alter or amend the judgment under Fed. R. Civ.
P. 59 and/or motion for relief from judgment under Fed. R. Civ. P. 60, the undersigned stated
that plaintiff’s request to alter or amend the judgment under Rule 59 was untimely because it was
not filed within 28 days after entry of the judgment pursuant to Fed. R. Civ. P. 59(e). (Id. at
PAGEID 143). Moreover, plaintiff failed to show that relief from judgment pursuant to Fed. R.

Civ. P. 60(b) was warranted. (Id.). The District Judge adopted the undersigned’s Report and
Recommendation on May 3, 2021. (Doc. 29).
On July 21, 2021, plaintiff filed a motion to reopen the case. (Doc. 31). Plaintiff’s
motion, in its entirety, provides:
Commissioner Andrew Saul was fired in good faith he constantly remanded my
case for SSDI. Now I want my case open and yes I do oppose his remand. His
blind sightedness toward SSDI concerning my case caused my SSDI benefits to be
dismissed. My transcript is on file which is evident that I meet the requirements
for SSDI, we have a new commissioner with a new administration that cares about
my SSDI case. Please keep my case open so that benefits that I’m entitled to can
be applied to my SSDI benefits.
(Id.). On October 12, 2021, plaintiff filed a second motion to reopen the case where she
contends her case should be reopened for SSDI benefits. (Doc. 32). Plaintiff specifically argues:
First of all the intrested (sic) party in this case fought against me, the attorney took
no intrest (sic) or mention of my mental health history. The attorney did’nt (sic)
make any effort to represent or stand for my rights. Therefore please reopen my
case for SSDI Benifits (sic). No one sent letters to me informing me about my case.
(Id.). As best the Court can discern, it appears that plaintiff opposes the remand of her case and
requests that her case remain open. (Docs. 31, 32). For the reasons that follow, plaintiff’s
motions should be denied.
Plaintiff’s motions opposing the motion to remand were filed after the entry of judgment
against her. Therefore, the Court liberally construes plaintiff’s pro se motions as a request to
alter or amend the judgment under Fed. R. Civ. P. 59 and/or motion for relief from judgment
under Fed. R. Civ. P. 60.
First, any request to alter or amend the judgment under Rule 59 is untimely. Pursuant to
Fed. R. Civ. P. 59(e), a motion to alter or amend a judgment must be filed within 28 days after
entry of the judgment. As this Court previously explained (Doc. 27), judgment was entered in
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this case on June 16, 2020. (Doc. 5). Plaintiff’s motions were filed after the deadline had
expired. Therefore, plaintiff’s motions to alter or amend the judgment should be denied as
untimely.
Second, plaintiff has not shown that relief from judgment pursuant to Fed. R. Civ. P.
60(b) is warranted. Rule 60(b) provides, in relevant part, for relief from a judgment “for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released or discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other
reason that justifies relief.” Fed. R. Civ. P. 60(b). It is well-established that Rule 60(b)(6)
applies “only in exceptional or extraordinary circumstances which are not addressed by the first
five numbered clauses of the Rule.” Hopper v. Euclid Manor Nursing Home, 867 F.2d 291, 294
(6th Cir. 1989). See also Fuller v. Quire, 916 F.2d 358, 360 (6th Cir. 1990).
Plaintiff has not addressed any of the six reasons set forth in Rule 60(b) to justify relief
from judgment in this case. Nor has she alleged any facts which suggest that relief from
judgment is warranted in this case. Therefore, it is recommended that relief from judgment in
this case be denied.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s motions to reopen the case (Docs. 31, 32) be DENIED.
2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
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appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).

10/18/2021
Date:____________

_________________________
Karen L. Litkovitz
Chief United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MACHELLE COLLINS,
Plaintiff,

Case No. 1:18-cv-268
Black, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

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