Davis v. Social Security Administration
Filing
7
ORDER signed by Judge Lynn Adelman on 7/10/13 granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff should provide defendant or her counsel with copies of all future motions or papers filed by plaintiff in this action. Further ordering Commissioner to file any motion to dismiss by 8/9/13. If Commissioner does NOT move to dismiss, briefing schedule in order shall apply. See order. (cc: all counsel, via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRYAN O’DELL DAVIS
Plaintiff,
v.
Case No. 13-C-0704
SOCIAL SECURITY ADMINISTRATION
Defendant.
ORDER
Pro se plaintiff Bryan Davis filed a complaint against the Social Security Administration,
asking that his case be “reopened.” He also filed a petition to proceed in forma pauperis. On
review of the petition, I concluded that plaintiff satisfied the poverty requirements of 28 U.S.C.
§ 1915, but on review of the complaint I could not determine whether plaintiff stated a claim
upon which relief could be granted. While the district court has jurisdiction under 42 U.S.C. §
405(g) to review the “final decision of the Commissioner of Social Security made after a
hearing” on a claim for disability benefits, a “refusal to reopen or a decision to apply
administrative res judicata is a discretionary one not subject to judicial review.” Johnson v.
Sullivan, 936 F.2d 974, 976 (7th Cir. 1991). I afforded plaintiff 14 days to submit an amended
complaint clarifying his claim, instructing him to identify the decision he seeks to have reviewed
or reopened and briefly state the basis for his claim that the decision was incorrect.
On July 8, 2013, plaintiff filed a letter indicating that he is unable to work due to his
condition, that he has been waiting six years for disability benefits, and that social security is
overlooking his doctor’s statement. “That’s why I need my case reopen.” (R. 6.)
It remains unclear whether plaintiff seeks review of a “final decision” within the meaning
of § 405(g). However, I will not at this point dismiss the action for lack of jurisdiction or failure
to state a claim. Rather, I will grant the petition to proceed in forma pauperis and permit the
Commissioner to file a motion to dismiss, if appropriate, in lieu of a proposed Notice of Filing
and Preservation of Rights.
THEREFORE, IT IS ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (R. 2) is GRANTED. The file will be returned to the Clerk of Courts for service on the
Commissioner of Social Security. Plaintiff is advised to provide defendant or her counsel with
copies of all future motions or papers filed by plaintiff in this action.
IT IS FURTHER ORDERED that on or before August 9, 2013, the Commissioner shall
file any motion to dismiss. If the Commissioner moves to dismiss, plaintiff shall file a response
within 21 days of service of the motion, and the Commissioner may file a reply within 14 days
of service of the response.
If the Commissioner does not move to dismiss, the following schedule shall apply:
On or before September 9, 2013, the Commissioner shall serve on plaintiff (but not file
with the Clerk of Court) a copy of its proposed Notice of Filing and Preservation of Rights and
a copy of the transcript of the administrative proceedings. This step will afford the parties an
opportunity to consider and pursue resolution of plaintiff’s appeal without the need for a court
decision on the merits.
On or before October 9, 2013, plaintiff shall file with the Clerk of Court and send a copy
to defendant’s counsel a brief in support of his claim. This brief shall include: (a) a statement
of the case, in which plaintiff should briefly describe the outcome of the administrative
proceedings, and present a statement of the relevant facts, which should also include a
summary of plaintiff’s physical and mental impairments that allegedly prevent plaintiff from
working; (b) a statement of errors, which shall set forth the specific errors allegedly committed
at the administrative level that entitle plaintiff to relief; and (c) a statement of relief setting forth
the relief sought.
On or before November 8, 2013, defendant shall file and serve on plaintiff its Notice of
Filing and Preservation of Rights, and a brief which responds specifically to each error raised
by plaintiff. In addition, the brief should raise relevant matters not put at issue by plaintiff and
include whatever supplemental materials defendant deems appropriate to support such other
matters. Defendant need not include a “statement of the case” unless plaintiff’s statement is
inaccurate or incomplete. At the same time as the brief is filed, defendant shall also file with
the Clerk of Court a certified copy of the transcript of the administrative proceedings, together
with a notice of filing of the transcript.
On or before November 25, 2013, plaintiff may file with the Clerk of Court and send a
copy to defendant’s counsel, a brief, which replies to the matters raised in defendant’s brief.
The initial briefs of plaintiff and defendant shall not exceed 25 double-spaced pages
each, and the reply brief of plaintiff shall not exceed 10 double-spaced pages, unless the court
grants an exception for good cause shown. The parties should notify the court promptly if
either chooses not to submit a reply brief or supplemental supporting materials.
Dated at Milwaukee, Wisconsin this 10th day of July, 2013.
/s Lynn Adelman
_____________________________
LYNN ADELMAN
District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?