Owen, Brenda v. Smith, Phyllis

Filing 11

ORDER that plaintiff Brenda Marcell Owen's request to proceed in forma pauperisis GRANTED. Service of the complaint is STAYED pending plaintiff showing she has obtained a final decision from the commissioner identifying the administrative decision that she is challenging. If plaintiff fails to submit the additional information requested by May 25, 2018, then the court will dismiss this case. Signed by Magistrate Judge Stephen L. Crocker on 5/3/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRENDA MARCELL OWEN,
Plaintiff,

ORDER

v.
NANCY BERRYHILL, 1
Acting Commissioner of Social Security,

18-cv-206-wmc

Defendant.
Plaintiff Brenda Marcell Owen has filed a fourth proposed complaint seeking review of a
social security disability or supplemental security income decision. Plaintiff asks for leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915 and supports her request with a financial affidavit.
From the affidavit plaintiff submits, I find that she is unable to prepay the fees and costs of
commencing this action or to give security therefor. However, before I will direct the clerk’s office
to issue summons, I note that plaintiff once again has failed to allege facts in her complaint showing
that this court has the authority to decide her case. Under 42 U.S.C. § 405(g), this court has
authority only to review a “final” decision of the Commissioner of Social Security denying a
plaintiff’s application for social security disability benefits. Under the social security rules, a decision
denying social security benefits does not become final unless the claimant has completed all the steps
of the administrative process, including filing a request for review with the Appeals Council. When
the Appeals Council denies review, the decision of the commissioner becomes “final” and an appeal
to federal court is permissible.
Plaintiff alleges that she has completed all the steps of the administrative process and
obtained a final decision from the commissioner, but there is no proof of this: plaintiff has not

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I have amended the caption to reflect that Nancy Berryhill is presently the Acting
Commissioner of Social Security.

submitted a copy of the final decision or the notice that she should have received letting her know
that her appear was denied from the Social Security Appeals Council.
Once again,, instead of dismissing the this complaint on the ground that plaintiff fails to state
a claim for which relief may be granted, the court will provide plaintiff the opportunity to submit
more information that shows that she really has obtained a final decision from the commissioner on
her application for social security benefits. The easiest way to do this would be for plaintiff to submit
a copy of the letter or letters from the Appeals Council denying her request for review, which plaintiff
should have received if she completed the administrative process. Alternatively, plaintiff may submit
a letter stating the specific date on which the final decision in her case was issued. Upon receipt of
that information, the court will deem it to be an amendment to the complaint. If plaintiff has not
taken all the steps needed to complete the administrative review process or has not yet received a
final decision, then she may voluntarily dismiss this case without prejudice, which means that she
could reopen it after completing the administrative process.

ORDER
IT IS ORDERED that plaintiff Brenda Marcell Owen’s request to proceed in forma pauperis
is GRANTED. Service of the complaint is STAYED pending plaintiff showing she has obtained a
final decision from the commissioner identifying the administrative decision that she is challenging.
If plaintiff fails to submit the additional information requested by May 25, 2018, then the court will
dismiss this case.
Entered this 3rd day of May, 2018.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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