Foose v. Colvin et al

Filing 6

ORDER adopting and incorporating the 5 Proposed Findings and Recommendation of the magistrate judge; denying the plaintiff's 1 Motion to proceed in forma pauperis; denying the plaintiff's 2 petition for a writ of mandamus; denyin g the plaintiff's 3 Motion to toll; and directing that this civil action be dismissed. Signed by Judge John T. Copenhaver, Jr. on 3/23/2015. (cc: plaintiff, via certified mail, at 923 Sutherland Drive, St. Albans, West Virginia, 25177; counsel of record; Magistrate Judge Tinsley) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CAROLYN JEAN FOOSE,
pro se,
Plaintiff,
v.

Civil Action No. 2:14-12914

CAROLYN W. COLVIN,
Commissioner of Social
Security Administration,
JUDGE LISA SAUNDERS,
Appeals Council
JACK PENCA,
Administrative Law Judge
ERIC HOLDER,
U.S. Attorney General,
MS. SIGMAN,
Caseworker,
Defendants.

ORDER
The court having received the Proposed Findings and
Recommendation (“PF&R”) submitted on February 27, 2015 by United
States Magistrate Judge Dwane L. Tinsley; and there being no
objections to the PF&R filed by either the defendant or the
plaintiff; it is ORDERED: (1) that the PF&R of the magistrate
judge be, and hereby is, adopted by the court and incorporated
herein; (2) that the plaintiff’s motion to proceed in forma
pauperis be, and hereby is, denied; (3) that the plaintiff’s
petition for a writ of mandamus be, and hereby is, denied; (4)

that the plaintiff’s motion to toll be, and hereby is, denied;
and (5) that this civil action be, and hereby is, dismissed. 1
The Clerk is requested to transmit a copy of this
order to all counsel of record, to Magistrate Judge Tinsley, and
to the plaintiff, by certified mail, at 923 Sutherland Drive,
St. Albans, West Virginia, 25177.
ENTER: March 23, 2015

John T. Copenhaver, Jr.
United States District Judge
1

The magistrate judge observed that this case, though presented
in the form of a petition for a writ of mandamus, is in
substance an attempt to review a decision of the Commissioner of
the Social Security Administration denying the plaintiff’s
application for Social Security Disability Insurance benefits on
the basis of res judicata. As Judge Tinsley explained, see PF&R
at 9-10, “courts lack jurisdiction to review a decision . . .
not to reopen a claim for benefits,” Holloway v. Schweiker, 724
F.2d 1102, 1104 (4th Cir. 1984), because 42 U.S.C. § 405(g)
“cannot be read to authorize judicial review of alleged abuses
of agency discretion” in such cases, Califano v. Sanders, 430
U.S. 99, 107 (1977). There is an exception to that rule if the
Commissioner’s denial is challenged on constitutional grounds.
Sanders, 430 U.S. at 108-09. But the magistrate judge noted,
see PF&R at 9, that “the plaintiff [] made only vague and
conclusory allegations concerning how the conduct of the
[Commissioner] violated her [constitutional rights],” and our
court of appeals has made clear that such unadorned assertions
do not create jurisdiction to review the Commissioner’s decision
not to reopen a claim, Holloway, 724 F.2d at 1104-05 (“If the
mere allegation of a denial of due process can suffice to
establish subject-matter jurisdiction, then every decision of
the Secretary would be reviewable by the inclusion of the words
‘arbitrary’ or ‘capricious’ in the complaint.”). Accordingly,
Judge Tinsley’s conclusion that the court lacks subject-matter
jurisdiction over the plaintiff’s claims, see PF&R at 9,
provides a sufficient basis for dismissal.