Black v. Social Security Admin. et al

Filing 8

ORDER granting #2 Motion for Leave to Proceed in forma pauperis and dismissing claims with prejudice against the Social Security Administration, Unknown Federal Employees, and Andrew Saul and dismissing with prejudice plaintiff's Rehabilitation Act individual capacity claim against Hector. Signed by U.S. District Judge Jeffrey L. Viken on 2/17/21. (SB) MAILED copy of Order to Jacob Black on 2/17/2021 (SAC).

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 1 of 8 PageID #: 44

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JACOB A. BLACK,

CIV. 20-5083-JLV
Plaintiff,
ORDER

vs.
SOCIAL SECURITY ADMINISTRATION;
UNKNOWN FEDERAL EMPLOYEES, in
their individual and official capacities;
HECTOR, U.S.A. AG, in his individual
and official capacity; and ANDREW
SAUL, in his individual and official
capacity,
Defendants.
Plaintiff Jacob A. Black, appearing pro se, initiated this multi-count
action against the defendants. (Docket 1). Mr. Black moves for leave to
proceed in forma pauperis and provides the court with his financial
information. (Docket 2).
A federal court may authorize the commencement of suit without
prepayment of fees when an applicant files an affidavit stating he is unable to
pay the costs of the lawsuit. 28 U.S.C. § 1915. Determining whether an
applicant qualifies to proceed in forma pauperis under § 1915 is committed to
the court’s discretion. Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th
Cir. 1983). “In forma pauperis status does not require a litigant to

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 2 of 8 PageID #: 45

demonstrate absolute destitution.” Lee v. McDonald’s Corp., 231 F.3d 456,
459 (8th Cir. 2000). The court finds Mr. Black is indigent and grants his
motion to proceed in forma pauperis.
Because Mr. Black is proceeding in forma pauperis, the court must
screen the complaint pursuant to 28 U.S.C. § 1915. That statute provides:
Notwithstanding any filing fee, . . . the court shall dismiss the case at
any time if the court determines that-...
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2). Subsection (e)(2) allows the court sua sponte to review a
complaint filed with an in forma pauperis application to determine if the action
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant or defendants who are immune from such relief. The court is
required to screen a pro se complaint and dismiss those which are frivolous or
fail to state a claim for relief. In evaluating the complaint, the court must
construe plaintiff’s pro se complaint liberally. See Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004). This means “that if the essence of an allegation is
discernible, even though it is not pleaded with legal nicety, then the district
court should construe the complaint in a way that permits the layperson’s
claim to be considered within the proper legal framework.” Jackson v. Nixon,
747 F.3d 537, 544 (8th Cir. 2014) (internal quotation marks omitted). The
2

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 3 of 8 PageID #: 46

complaint “still must allege sufficient facts to support the claims advanced.”
Stone, 364 F.3d at 914. A[P]ro se complaints are to be construed liberally . . . .@
Id. (referencing Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Liberally construing Mr. Black’s complaint, he asserts subject-matter
jurisdiction under 28 U.S.C. § 1331. (Docket 1). He claims the defendants
violated the First, Fifth, Ninth, and Fourteenth Amendments as well as the
Americans with Disabilities Act. Id. Mr. Black is hearing impaired and has
been an individual with a disability his entire life. Id. at pp. 3 & 5. In October
2017, his social security benefits were terminated and Mr. Black claims the
termination was due to his age. Id. at pp. 3-4.
Mr. Black seeks to have his social security benefits and insurance
restored. Id. at p. 9. He claims the “Unknown [F]ederal [E]mployees ignored
the appeal process to give me the same right[s] as others.” Id. at p. 11. Mr.
Black claims “Hector,” the “U.S.A. AG,” changed the dates of his appointments,
violated his religious rights, refused to secure a sign language interpreter and
refused to properly communicate with a hearing-impaired Social Security
claimant. Id. at pp. 1, 4, 7 & 9. Mr. Black asserts Hector’s failure to provide
an interpreter is equivalent to a refusal to work with plaintiff due to his
disability. Id. at pp. 3-5.
Addressing the claims in the complaint, the court makes the following
observations. First, Mr. Black names the Social Security Administration as a
defendant. (Docket 1). “The United States and its agencies are generally
immune from suit.” Walker v. Shafer, CIV. 16-5121, 2018 WL 813420, at *3
3

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 4 of 8 PageID #: 47

(D.S.D. Feb. 9, 2018) (citing FDIC v. Meyer, 510 U.S. 471, 474 (1994) (“Absent
a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.”). The United States must waive its sovereign immunity for the
district court to have jurisdiction over a claim. Id. Because Mr. Black does not
demonstrate a waiver of sovereign immunity, his claims against the Social
Security Administration are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
Second, to the extent Mr. Black is suing due to a termination of his
social security benefits, the court does not have jurisdiction to hear this claim.
In order to obtain judicial review of a social security benefit claim, the plaintiff
must put forth evidence that there was a “final decision of the Commissioner of
Social Security made after a hearing to which [plaintiff] was a party[.]”
42 U.S.C. § 405(g). Although Mr. Black claims he has exhausted his remedies,
the documents provided with his complaint do not support this assertion. See
Docket 1-1.
Third, Mr. Black brings a Bivens1 claim against federal defendants. He
sues the Unknown Federal Employees, Hector, and Andrew Saul for allegedly
violating his First, Fifth, Ninth, and Fourteenth Amendment rights. (Docket 1).
Because defendants work for the federal government, the court will not
consider Mr. Black’s due process claims under the Fourteenth Amendment,

1Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
4

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 5 of 8 PageID #: 48

but rather under the Fifth Amendment.2 The United States Supreme Court
“held that Social Security claimants may not sue government officials under
Bivens for alleged due process violations in denying or delaying benefits.”
Sinclair v. Hawke, 314 F.3d 934, 940 (8th Cir. 2003) (citing Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988)). Because a claim for denying benefits
cannot be brought under Bivens, Mr. Black’s due process claims are dismissed
under 28 U.S.C. § 1915(e)(2)(B)(i-ii).
Mr. Black vaguely alleges his religious rights have been violated. (Docket
1 at p. 7). The complaint does not state facts which would support a claim that
Mr. Black’s First Amendment rights were violated. Braden v. Wal-Mart, 588
F.3d 585, 594 (8th Cir. 2009) (“a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)). Mr. Black’s First
Amendment claims fail to state a claim upon which relief can be granted and
are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-ii).
Mr. Black claims his Ninth Amendment rights have been violated.
(Docket 1 at p. 9). “[T]he Ninth Amendment does not create substantive rights
beyond those conferred by governing law.” Gaslin v. Fassler, 377 Fed. Appx.
579, 580 (8th Cir. 2010). Mr. Black’s Ninth Amendment claims fail to state a
claim upon which relief can be granted and are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(i-ii).
2The

due process clause of the Fifth Amendment applies to the United
States, while the due process clause of the Fourteenth Amendment applies to
the States. Dusenbery v. United States, 534 U.S. 161,167 (2002).
5

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 6 of 8 PageID #: 49

Finally, Mr. Black asserts that Hector, the “U.S.A. AG,” violated the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.3 Because Mr. Black
claims Hector is a federal employee, the court finds Mr. Black’s claim is better
suited as a claim under the Rehabilitation Act, 29 U.S.C. § 794. The
Rehabilitation Act states:
No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of . . . his disability, be excluded
from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by
any Executive agency[.]
29 U.S.C. § 794(a).
To establish a prima facie claim under the Rehabilitation Act, a plaintiff
must show that “(1) he is a qualified individual with a disability; (2) he was
denied the benefits of a program or activity of a public entity which receives
federal funds, and (3) he was discriminated against based on his disability.”
Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) (referencing 29 U.S.C.
§ 794(a); other citation omitted).
The Rehabilitation Act does not allow for individual liability. Landman v.
Kaemingk, No. 4:18-CV-04175, 2020 WL 3608288, at *2 (D.S.D. July 2, 2020);
Lundahl v. Gross, 5:18-CV-05090, 2020 WL 927650, at *8 (D.S.D. Feb. 26,

3Mr.

Black does not allege specific facts against Andrew Saul or the
Unknown Federal Employees regarding disability discrimination. His
claims against these defendants are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (i-ii).
6

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 7 of 8 PageID #: 50

2020). Mr. Black’s Rehabilitation Act claim, if one exists, may only proceed
against Hector in his official capacity as a “U.S.A. AG.” (Docket 1).
Mr. Black claims he is hearing impaired and that Hector changed the
dates of plaintiff’s appointments and refused to secure a sign language
interpreter. Id. at pp. 4, 7 & 9. Mr. Black claims Hector inhibited plaintiff’s
ability to get his social security benefits restored because Hector “[r]efused to
properly communicate with my disability” and that this alleged discrimination
was “because of my disability.” Id. at pp. 4-5. At this juncture, the court
cannot say Mr. Black’s Rehabilitation Act claim against Hector in his official
capacity is wholly without merit.
For the reasons given above, it is
ORDERED that Mr. Black’s motion for leave to proceed without
prepayment of fees (Docket 2) is granted. Mr. Black may prosecute this action
to its conclusion without prepayment of costs or fees. Any recovery in this
action by Mr. Black shall be subject to the repayment of costs and fees,
including service of process fees and the $350 filing fee.
IT IS FURTHER ORDERED that Mr. Black’s claims against the Social
Security Administration, Unknown Federal Employees, and Andrew Saul are
dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-ii).
IT IS FURTHER ORDERED that Mr. Black’s Rehabilitation Act claim
against Hector in his individual capacity is dismissed with prejudice pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i-ii). Mr. Black’s Rehabilitation Act claim against
Hector in his official capacity survives the 28 U.S.C. § 1915 screening review.
7

Case 5:20-cv-05083-JLV Document 8 Filed 02/17/21 Page 8 of 8 PageID #: 51

IT IS FURTHER ORDERED that Mr. Black shall complete and send to
the Clerk of Court a summons and USM-285 form for Hector. Upon receipt of
the completed summons and USM-285 form, the Clerk of Court will issue a
summons for Hector. If the completed summons and USM-285 form are not
submitted by Mr. Black as directed, the complaint may be dismissed. The
United States Marshal shall serve the completed summons with a copy of the
complaint and this order upon the defendant. The United States will advance
the costs of service.
IT IS FURTHER ORDERED that Mr. Black shall serve upon the
defendant or, if appearance has been entered by counsel, upon the attorney(s),
a copy of every further pleading or other document submitted for consideration
by the court. He shall include with the original paper to be filed with the Clerk
of Court a certificate stating the date a true and correct copy of any document
was mailed to defendants or their counsel. Any paper received by the court
which has not been filed with the Clerk of Court or which fails to include a
certificate of service will be disregarded by the court.
Dated February 17, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

8