Wiggins v. Social Security Administration et al
Filing
14
Order Accepting Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith. re: 12 Findings and Recommendations on Case re: 1 Complaint filed by Herbert Wiggins. (Ordered by Judge Sam A. Lindsay on 5/15/2020) (svc)
Case 3:18-cv-00374-L-BH Document 14 Filed 05/15/20
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HERBERT WIGGINS, ID #1370636,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION and D.B. NEALY,
Defendants.
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Civil Action No. 3:18-CV-374-L
ORDER
On April 9, 2020, United States Magistrate Judge Irma Carrillo Ramirez entered the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”)
(Doc. 12), recommending that the court dismiss with prejudice the action filed by Plaintiff Herbert
Wiggins (“Plaintiff”) against Defendants Social Security Administration and D.B. Nealy
(“Defendants”). In Plaintiff’s Complaint (Doc. 1), he alleged that Defendants are violating his
rights by refusing to pay his social security benefits while he is incarcerated.
In the Report, Magistrate Judge Ramirez determined that Plaintiff’s claim is frivolous
because “[u]nder 42 U.S.C. § 402(x)(1), social security benefits are generally not payable for the
months that an individual ‘is confined in a jail, prison, or other penal institution or correctional
facility pursuant to his conviction of a criminal offense.’” Report 2 (citing 42 U.S.C. §
402(x)(1)(A)(i)). For this reason, she further determined that Plaintiff failed to state a claim upon
which relief can be granted, and, thus, this action should be dismissed with prejudice under 28
U.S.C. § 1915(e)(2)(B) and 1915A(b). Additionally, Magistrate Judge Ramirez determined that
this dismissal should count as a “strike” or “prior occasion” within the meaning of 28 U.S.C. §
1915(g).
Order – Page 1
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On April 24, 2020, Plaintiff filed his Appeal of Decision in Case (“Objections”) (Doc. 13). *
In his Objections, he contends that he is appealing the recommendation of Magistrate Judge
Ramirez for the following reasons: (1) he did not consent for a Magistrate Judge to make a decision
in his case; and (2) the Magistrate Judge erred in recommending that his case be dismissed with
prejudice as frivolous and for failure to state a claim because he did state a claim against
Defendants for denying his rights. He further contends that Magistrate Judge Ramirez denied him
of his rights to an attorney and renews his request for counsel.
Plaintiff’s argument that he did not consent for the Magistrate Judge to decide this action
is of no moment, as the district court—not the Magistrate Judge—makes the final determination
in this action. The Magistrate Judge simply makes a recommendation to the court. Thus,
Plaintiff’s Objection on this basis is overruled.
With regard to Plaintiff’s second Objection, the court agrees with Magistrate Judge
Ramirez’s determination that Plaintiff is not entitled to receive his social security benefits during
the time of his incarceration. As Magistrate Judge Ramirez noted, 42 U.S.C. 402 controls this
determination, as this section governs the payment of old-age and survivors insurance benefits,
including the payment of social security benefits. Section 402(x)(1)(A) provides in pertinent part:
[N]o monthly benefits shall be paid under this section . . . to any individual for any
month ending with or during or beginning with or during a period of more than 30
days throughout all of which such individual [] is confined in a jail, prison, or other
penal institution or correctional facility pursuant to his conviction of a criminal
offense.
It is undisputed that Plaintiff is currently incarcerated; thus, under Section 402(x), he is not entitled
to receive his social security benefits while he is prison. Makofsky v. Apfel, 248 F.3d 1139, 1139
Although Plaintiff presented his objections in the form of an appeal, the court treats them as objections to the Report.
Additionally, it is unclear when Plaintiff placed his Objections in the prison mail; however, the postmark indicates
that it was mailed on April 24, 2020—two days before the deadline pursuant to the prisoner mailbox rule. Despite
being docketed as filed on April 28, 2020, the court determines that Plaintiff’s Objections were timely filed.
*
Order – Page 2
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(5th Cir. 2001) (stating that under 42 U.S.C. § 402(x), an incarcerated individual is not entitled to
receive social security benefits during the time of his incarceration). For this reason, Plaintiff’s
Objection on this basis is overruled. The court, therefore, agrees with Magistrate Judge Ramirez’s
determination that Plaintiff’s claim is frivolous and that he has failed to state a claim upon which
relief can be granted. Accordingly, the court will dismiss this action on those grounds.
In Plaintiff’s Objections, he also renewed his request for appointed counsel. He filed his
initial Motion for Appointment of Counsel (Doc. 9) on March 8, 2018, which Magistrate Judge
Ramirez denied on March 12, 2018 (Doc. 10) because she determined that Plaintiff failed to
present “exceptional circumstances” that justified the appointment of counsel. Doc. 10, at 1 (citing
Gonzales v. Carlin, 907 F.2d 573, 579-80 (5th Cir. 1990) (citing Ulmer v. Chancellor, 691 F.2d
209 (5th Cir. 1982)). Plaintiff again has not shown “exceptional circumstances” that justify the
appointment of counsel at this stage. Even if the court determined that Plaintiff met his burden to
justify appointed counsel, the court determines that such appointment would be without merit as
this action is frivolous and will be dismissed with prejudice. Thus, the appointment of counsel
will not change the outcome, and Plaintiff’s request for appointment of counsel is denied.
Having reviewed the pleadings, file, record in this case, and Report, and having conducted
a de novo review of the portions of the Report to which objections were made, the court determines
that the findings and conclusions of the Magistrate Judge are correct and accepts them, as
supplemented, as those of the court. The court, therefore, overrules Plaintiff’s Objections (Doc.
13) and dismisses with prejudice this action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)
and for failure to state a claim under 28 U.S.C. § 1915A(b). The court also denies Plaintiff’s
request for the appointment of counsel. This dismissal will count as a “strike” or “prior occasion”
within the meaning of 28 U.S.C. § 1915(g).
Order – Page 3
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The court prospectively certifies that any appeal of this action would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the
court incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th
Cir. 1997). Based on the Magistrate Judge’s Report, the court concludes that any appeal of this
action would present no legal point of arguable merit and would therefore be frivolous. Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this
certification by filing a separate motion to proceed in forma pauperis on appeal with the clerk of
the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App.
P. 24(a)(5).
It is so ordered this 15th day of May, 2020.
_________________________________
Sam A. Lindsay
United States District Judge
Order – Page 4
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