Turner v. Astrue

Filing 5

MEMORANDUM DECISION denying 4 Motion for Service of Process. Signed by Judge Ted Stewart on 01/27/2012. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LUCINDA JOY TURNER,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
MICHAEL J ASTRUE, Commissioner of
Social Security,

Case No. 2:11-CV-480 TS

Defendant.

Plaintiff, Lucinda Joy Tuner filed this pro se civil rights suit under 42 U.S.C. § 1983.
Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. This case is
now before the Court for screening of Plaintiff’s Complaint under 28 U.S.C. § 1915(e).
I. SCREENING STANDARD
Under 28 U.S.C. § 1915(e)(2)(B), a court shall dismiss any claims in a complaint filed in
forma pauperis if they are frivolous, malicious or fail to state a claim upon which relief may be
granted. Because Plaintiff is proceeding pro se the Court must construe her pleadings liberally
and hold them to a less stringent standard than formal pleadings drafted by lawyers.1 However,
“[t]he broad reading of the plaintiff’s complaint does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim could be based.”2 While Plaintiff

1

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

2

Id.

need not describe every fact in specific detail, “conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.”3
“Dismissal of a pro se complaint for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give
him an opportunity to amend.”4 “In determining whether a dismissal is proper, [the court] must
accept the allegations of the complaint as true and construe those allegations, and any reasonable
inferences that might be drawn from them, in the light most favorable to the plaintiff.”5
However, pro se litigants must still “follow the same rules of procedure that govern other
litigants.”6
II. PLAINTIFF’S ALLEGATIONS
Plaintiff’s Complaint alleges that Michael Astrue, Commissioner of Social Security,
violated Plaintiff’s constitutional rights, privileges, or immunities by refusing to consider both
her mental and physical disabilities and by not using all information before him when denying
Plaintiff’s claim.7

3

Id.

4

Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001).

5

Gaines, 292 F.3d at 1224.

6

Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

7

Docket No. 3.
2

III. SUFFICIENCY OF PLAINTIFF’S COMPLAINT
Plaintiff’s Complaint is brought under 42 U.S.C. § 1983. However, as Plaintiff’s civil
rights allegations arise from the denial of social security benefits, they are governed by the Social
Security Act.8 Under the Social Security Act, “[n]o findings of fact or decision of the
Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental
agency except as [provided in the act],”9 which makes 42 U.S.C. § 405(g) “the sole means for
judicial review.”10
As a result of this provision, Plaintiff’s Complaint cannot properly be brought as a § 1983
action. However, as Plaintiff is proceeding pro se, the Court will construe her Complaint as an
action brought under § 405(g) and determine whether it is sufficient under that statute.
42 U.S.C. § 405(g) states:
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may allow. Such action shall
be brought in the district court of the United States for the judicial district in
which the plaintiff resides . . . .
This case was filed May 27, 2011. It appears from Plaintiff’s Complaint that Plaintiff is
attempting to appeal a decision issued February 25, 2010,11 which would be outside the sixty-day
8

See Stewart v. Barnhart, 94 F. App’x 477, 478 (9th Cir. 2004) (unpublished).

9

42 U.S.C. § 405(h); see also Weinberger v. Salfi, 422 U.S. 749, 757 (1975).

10

Stewart, 94 F. App’x at 478; see also Weinberger, 422 U.S. at 757.

11

Docket No. 3, at 6.
3

window allowed by § 405(g). However, it is possible that Plaintiff is actually appealing a
decision that was finalized within the sixty-day window, as Plaintiff’s Complaint states that she
“filed a claim and 2 appeals and was denied before the court claim.”12 If in fact the February 25
date refers to the original decision, the Court’s jurisdiction over this case turns on the date of the
finalized agency appeal.
It is therefore
ORDERED that Plaintiff file within thirty days an amended complaint setting forth the
dates of appeal and final agency action. It is further
ORDERED that Plaintiff’s Motion for Service of Process (Docket No. 4) is DENIED
WITHOUT PREJUDICE. The Court will determine whether service of process is appropriate
after screening Plaintiff’s Amended Complaint.
DATED January 27, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

12

Id.