Hunter v. Saul

Filing 5

OPINION AND ORDER granting 2 MOTION to proceed in forma pauperis and Dismissing the Amended Petition for Writ of Mandamus. Signed by Chief Judge Roberto A. Lange on 8/12/2020. (CLR)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MICHAEL HUNTER,

4:20-CV-04104-RAL

Petitioner,
OPINION AND ORDER GRANTING

vs.

PETITIONER'S MOTION TO PROCEED IN

ANDREW M. SAUL,COMMISSIONER OF
SOCIAL SECURITY;

FORMA PAUPERIS AND DISMISSING
THE AMENDED PETITION FOR WRIT OF
MANDAMUS

Respondent.

Petitioner Michael Hunter filed an amended petition for writ of mandamus under 28

U.S.C. §§ 1331 and 1361. Doc. 4. Hunter moves for leave to proceed in forma pauperis and has
provided the Court with a financial affidavit. Doc. 2.
I. Standard of Review

Suits brought in forma pauperis are subject to a two-step screening process, which first

requires the plaintiff to demonstrate financial eligibility to proceed without prepayment offees.
Martin-Trigona v. Stewart. 691 F.2d 856, 857(8th Cir. 1982); see Lundahl v. JP Morgan Chase

Bank. 2018 WL 3682503, *1 (D.S.D. 2018). A person may be granted permission to proceed in
forma pauperis if he or she "submits an affidavit that includes a statement of all assets such [person]
possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C.
§ 1915(a)(1). The litigant is not required to demonstrate absolute destitution, and the determination of

whether a litigant is sufficiently impoverished to qualify to so proceed is committed to the couifs
discretion. Lee v. McDonald's Corp.. 231 F.3d 456(8th Cir. 2000); Cross v. Gen. Motors Corp.. 721
F.2d 1152,1157(8th Cir. 1983); see Babino v. Janssen & Son. 2017 WL 6813137, *1 (D.S.D. 2017).

In light ofthe information Hunter has provided in his financial affidavit, this Court finds that he may
proceed in forma pauperis.

The second step ofthe in forma pauperis screening process requires a district court to
determine whether a pro sc civil action against a governmental entity or employee should be
dismissed as "fiivolous, malicious, or fail[ing] to state a claim upon which relief may be granted" or

for "seek[ing] monetary relieffrom a defendant who is immune from such relief." 28 U.S.C. §

1915(e)(2); Martin-Trigona. 691 F.2d at 857; see also Lundahl. at *1. Pro se complaints must be
liberally constmed. Erickson v. Pardus. 551 U.S. 89,94(2007); see also Native Am. Council of
2 nbes v. Solem. 691 F.2d 382(8th Cir. 1982). Notwithstanding its liberal construction, a pro se

complaint may be dismissed as fiivolous "where it lacks an arguable basis either m law or in fact;"
that is, where the claim is "based on an indisputably meritless legal theory" or where, having

"pierce[d] the veil ofthe complaint's factual allegations," the court determines those facts are
"fantastic or delusional." Neitzke v. WiUiams. 490 U.S. 319,325, 327-28(1989)(internal citations

omitted); see also Denton v. Hernandez. 504 U.S. 25, 33 (1992). A court may dismiss a complaint for
failure to state a claun "as a matter oflaw if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations." Neitzke, 490 U.S. at 327(1989)(internal
citations omitted). To avoid dismissal, a complaint "must show that the plaintiff'is entitled to relief,'

... by alleging 'sufficient factual matter, accepted as true, to state a claim to rehef that is plausible on
its face.'" Torti v. Hoag. 868 F.3d 666,671 (8th Cir. 2017)(quoting In re Pre-Filled Propane Tank
Antitmst Litig., 860 F.3d 1059, 1063(8th Cir. 2017)(en banc). Fed. R. Civ. P. 8(a)(2), and Ashcroft
V. Igbal. 556 U.S. 662,678 (2009)). To determine whether a claim is plausible on its face is a

"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Ashcroft v. Igbal 556 U.S. at 679(2009). A complaint must allege "more than

labels and conclusions." Torti. 868 F.3d at 671 (citing Bell Atlantic Corp. v. Twomblv. 550 U.S. 544,
555 (2007)).

n. Allegations of Hunter's Amended Petition for Writ of Mandamus
Hunter claims that Saul is the acting Commissioner ofthe Social Security Administration

(SSA)and that his goal has heen to "deny disability benefits and make remedies meaningless[.]"
Doc. 4 at 1, 7. He asks this Comt to compel Saul "to perform a duty owed and issue payments for

disability parent/child benefits in[a] speedy manner[.]" Id. at 1. Hunter also asks that Saul recuse
himself as Commissioner because his appointment was made by President Donald Trump who was
elected through the assistance of Vladimir Putin. Id at 2.
Hunter claims that he has been declared an individual with a disability since he was a child

and only recently his social security benefits were denied because he is married and not entitled to
benefits. Id Hunter claims that from 1972 until 2017 he has been in and out of state mental health

hospitals through civil commitment. Id He claims that he has been married two different times(once
in Idaho and once m Washington) and that his marriages have been or shoxdd have been annulled. Id
at 4. Hunter asserts that because the SSA should not have denied his benefits due to his maiital status

because the SSA does not have the ability to make an accurate determination on his marital status. Id
Hunter's amended petition also addresses the alleged criminal acts of William Barr and President

Trump's response to COVID-19.Id at 10-11. He also asks that this Court compel the resignations of
President Trump and William Barr. Id at 12.
HI. Legal Analysis

Hunter brings his amended petition for writ of mandamus under 28 U.S.C. §§ 1331 and
1361. The Mandamus Act gives "district courts[]original jurisdiction of any action in the nature

of mandamus to compel an officer or employee ofthe United States or any agency thereofto
perform a duty owed to the plaintiff." 28 U.S.C § 1361. A writ of mandamus is an extraordinary

remedy and appropriate in situations where(1)the petitioner has an "indisputable right to the
relief sought,(2)the defendant has a nondiscretionary duty to honor that right, and(3)the
petitioner has no other adequate remedy." Castillo v. Ridge. 445 F.3d 1057, 1060-61 (8th Cir.
2006). Whether to issue a writ is within the discretion of the district court. See In re
MidAmeriean Energy Co., 286 F.3d 483,486(8th Cir. 2002)"The common-law writ of

mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only
if he has exhausted all other avenues of relief and only if the defendant owes him a clear

nondiscretionary duty." Heckler v. Ringer. 466 U.S. 602,616(1984).
Hunter does not claim that he has exhausted the administrative remedy process ofthe

SSA,but asks this Court to compel the release of his disability benefits after the Commissioner
found that Hunter was not entitled to them. See Doc. 4. Before a social security claimant can

seek judicial review,the claimant must exhaust the administrative remedies, and it is not until
these remedies have been exhausted that the Commissioner's decision is final. See Sipp v.

Astrue. 641 F.3d 975,979(8th Cir. 2011). Ifthe claimant does not properly present his/her claim
to the Commissioner and exhaust the remedies, a federal court is completely divested of

jurisdiction to hear the claim. Id;(citing Mathews v. Eldridge. 424 U.S. 319, 328

(1976))."Courts may waive the exhaustion requirement ifthe claimants establish(1)their claims
to the district court are collateral to their claim of benefits;(2)that irreparable injury will follow;

and(3)that exhaustion will otherwise be futile." Degnan v. Burwelh 765 F.3d 805, 808 (8th Cir.

2014)(citations omitted). Hunter has not stated facts that would support a waiver ofthe
exhaustion requirement, thus this Court does not have jurisdiction to hear his claim and his

amended petition for writ of mandamus is dismissed for failure to state a claim upon which relief
can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). This Court lacks the authority to compel

resignations of the President, the Attorney General ofthe United States, or the Commissioner of
Social Security.

Accordingly, it is

ORDERED that Hunter's motion to proceed in forma pauperis. Doc. 2, is granted. It is
finally

ORDERED that Hunter's amended petition for writ of mandamus is dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) without prejudice to refiling once he has exhausted administrative
remedies.

DATED this j?**" day of August 2020.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE