ORTEGA v. SOCIAL SECURITY ADMINISTRATION

Filing 15

ORDER THAT THE REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE THOMAS J. RUETER IS APPROVED AND ADOPTED. PLAINTIFF'S OBJECTIONS ARE OVERRULED. DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IS GRANTED AND PLAINTIFF'S COMPLAINT IS DISMISSED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THE CASE CLOSED. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/17/12. 5/18/12 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FAN-LI ORTEGA for WALDEMAR CABAN, :
Plaintiff,
:
:
vs.
:
:
SOCIAL SECURITY ADMINISTRATION,
:
Defendant.
:

CIVIL ACTION

NO. 11-3166

ORDER
AND NOW, this 17th day of May, 2012, upon consideration of Defendant’s Motion to
Dismiss Plaintiff’s Complaint (Document No. 6, filed September 16, 2011), and plaintiff’s letter/
response to the Motion (Document No. 10, filed February 28, 2012), and after review of the
Report and Recommendation of United States Magistrate Judge Thomas J. Rueter dated March
22, 2012,1 (Document No. 11, filed March 22, 2012) and Plaintiff’s Answer Opposing
Defendants’ Motion to Dismiss Complaint (Document No. 14, filed May 16, 2012), treated by
the Court as objections to the Report and Recommendation, IT IS ORDERED that:
1. The Report and Recommendation of United States Magistrate Judge Thomas J. Rueter
dated March 22, 2012, is APPROVED and ADOPTED;
2. Plaintiff’s objections to the Report and Recommendation (Document No. 14) are
OVERRULED for the reasons stated in that part of the Report and Recommendation that
addresses equitable tolling; and
3. The defendant’s Motion to Dismiss Plaintiff’s Complaint (Document No. 6) is
1

A copy of the Report and Recommendation was mailed to pro se plaintiff at the address
she provided, 1020 Spring Garden Street, Allentown, Pennsylvania 18102. That was also the
return address on the letter from plaintiff dated February 20, 2012, and filed on February 28,
2012 (Document No. 10). The Court notes that the Order dated February 28, 2012, referring the
case to Magistrate Judge Thomas J. Rueter for a Report and Recommendation, was sent to that
address and returned as unclaimed on March 13, 2012. In the event pro se plaintiff no longer
resides at the address she provided, she has failed to comply with Local Civil Rule 5.1(b), which
provides that “[a]ny party who appears pro se shall file with the party’s appearance or with the
party’s initial pleading an address where notices and papers can be served. Said party shall notify
the Clerk within fourteen (14) days of any change of address.”

GRANTED and plaintiff’s Complaint is DISMISSED WITH PREJUDICE.2
IT IS FURTHER ORDERED that the Clerk of Court shall MARK the case CLOSED.

BY THE COURT:
/s/ Jan E. DuBois
JAN E. DUBOIS, J.

2

The dismissal of the action is based on plaintiff’s failure to file her appeal of the decision
of the Commissioner of Social Security in this Court within the sixty-day limitations period set
forth in 28 U.S.C. § 405(g). Because plaintiff brought suit on behalf of Waldemar Caban, a
fifteen-year-old, it might be argued that the statute of limitations should be tolled until Waldemar
Caban reaches the age of majority. Many states, including Pennsylvania, have adopted such a
rule. See, e.g., 42 Pa. Cons. Stat. Ann. § 5533(b)(1) (“If an individual entitled to bring a civil
action is an unemancipated minor at the time the cause of action accrues, the period of minority
shall not be deemed a portion of the time period within which the action must be commenced.”).
However, as the Fourth Circuit explained in a case involving an alleged violation of the
Emergency Medical Treatment and Active Labor Act,
Exceptions to the running of a limitations period because of the would-be
plaintiff’s disability, though common, are nonetheless exceptions. The
blackletter rule, recognized by the Supreme Court since at least 1883, is that
a statute of limitations runs against all persons, even those under a disability,
unless the statute expressly provides otherwise.
Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994) (citing Vance v. Vance, 108 U.S. 514, 521
(1883)). Other cases have similarly held that a statute of limitations runs against a minor or
otherwise incapacitated plaintiff where there is no express exception for infancy or disability.
See, e.g., Schappacher v. United States, 475 F. Supp. 2d 749, 756 (S.D. Ohio 2007) (Federal Tort
Claims Act); Williams v. United States, 228 F.2d 129, 132 (4th Cir. 1955) (Suits in Admiralty
Act).
In this case, the limitations period in 42 U.S.C. § 405(g) does not include any exception
for disability or infancy. Thus, the Court concludes that the statute of limitations has run against
Waldemar Caban and plaintiff’s claim must be dismissed with prejudice. See Rodriguez ex rel.
J.J.T. v. Astrue, No. 10-9644, 2012 WL 292382, at *2 (S.D.N.Y. Jan. 31, 2012) (dismissing
appeal of final decision of Commissioner of Social Security as untimely under § 405(g) where
mother brought action on behalf of her minor child).
2