Pierce, Clyde v. Kijakazi, Kilolo

Filing 19

ORDER substituting Martin O'Malley, the United States of America and John Doe state employees as defendants; denying 18 Proposed Brief in Sur-Reply; and denying 14 motion to dismiss. Signed by District Judge James D. Peterson on 11/26/2024. (jls),(ps)

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

CLYDE PIERCE,
Plaintiff,
v.

OPINION and ORDER
23-cv-764-jdp

MARTIN O’MALLEY,1
Defendant.

Plaintiff Clyde Pierce, proceeding without counsel, alleges that officials delayed more
than a year in considering his request to reinstate Social Security benefits. The government
moves to dismiss Pierce’s amended complaint for failing to state a claim upon which relief may
be granted. Dkt. 14. I will deny that motion.

BACKGROUND
Pierce resides in Dane County. In his original complaint, Pierce alleged that the Social
Security Administration was failing to process his request for expedited reinstatement of his
Social Security benefits and he sought a writ of mandamus and emergency injunctive relief.
Dkt. 1. But before the government answered, Pierce sought to amend his complaint “to a civil
damages claim.” Dkt. 9. The court granted that request, Dkt. 10, and Pierce filed an amended
complaint alleging that starting in August 2022, Social Security Administration staff
unnecessarily delayed in approving his request for expedited reinstatement of his benefits.
Without benefits, Pierce, who is homeless, suffered financial hardship and almost froze to

Plaintiff has amended his complaint to name the current commissioner of Social Security as
the defendant, so I have amended the caption accordingly.

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death. In December 2023, he “was approved at the initial claim level for some unspecified
disability that started on 08/18/22.” Dkt. 11, ¶ 43.

ANALYSIS
Pierce alleges that Social Security Administration staff unnecessarily delayed in
approving his request for expedited reinstatement of his benefits, and he brings claims under
the Administrative Procedures Act, the Federal Tort Claims Act, and 42 U.S.C. § 1983. The
government moves to dismiss the case for Pierce’s failure to state a claim upon which relief may
be granted.
A. Administrative Procedures Act
Under the APA, I may “compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C.A. § 706(1). The government argues that Pierce’s APA claim has been
mooted by his approval for benefits and that he cannot recover money damages under the APA
for any past harm that Pierce suffered. I agree that Pierce can’t recover damages for an APA
claim, see 5 U.S.C. § 702; Veluchamy v. FDIC, 706 F.3d 810, 812 (7th Cir. 2013), and Pierce
says that he doesn’t seek money damages for this claim.
As for the mootness question, I agree with the government that Pierce couldn’t bring
an APA claim for the delay in reinstating his benefits if it in fact ultimately did reinstate those
benefits. But I take Pierce to be saying that there is a disconnect between the benefit
reinstatement that he sought and the benefits that were later approved: he says that “[n]o
reinstatement process occurred” and that he “was newly adjudicated disabled for some
unknown reason that began around the time I had originally asked for my benefits to be
reinstated.” Dkt. 16, at 3–4. Because I can infer that Pierce alleges that the Social Security

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Administration continues to delay a ruling on his specific claim for benefits reinstatement and
granted him unrelated benefits, I will deny the government’s motion to dismiss this claim.
B. 42 U.S.C. § 1983
The government argues that Pierce cannot bring a § 1983 claim because claims under
this provision can only be brought against persons acting under color of state law. Pierce
responds that the local officials considering his reinstatement application were state officials
acting under the authority of the federal government. In reply, the government argues that
even if the persons who delayed in considering Pierce’s request for reinstatement were state
officials authorized to make disability determinations, they would have been applying federal
law in doing so, and that § 1983 actions cannot be brought regarding actions taken under color
of federal law.2
This argument fails because the Supreme Court has already concluded that a plaintiff
may bring a § 1983 action against state officials who fail to properly interpret the Social
Security Act to deprive the plaintiff of his rights under that law. Maine v. Thiboutot, 448 U.S.
1, 6–8 (1980). Pierce alleges that staffers in the local Social Security office ignored his repeated
requests to reinstate his benefits, which appears to satisfy Thiboutot, and in any event, the
government doesn’t move for dismissal on the ground that Pierce hasn’t properly pleaded a
Thiboutot-type claim. I will deny the government’s motion to dismiss on this claim.
There is one glaring problem with this claim, which is that Pierce doesn’t name as a
defendant any state officials. But because he states that he needs to use discovery to ascertain

Pierce seeks to file a sur-reply on this issue. Dkt. 18. I will deny that motion because I do not
need further briefing to resolve this issue.

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their identities, I will assume that he means to name unidentified “John Doe” defendants and
I will direct the clerk of court to add them to the caption.
At the preliminary pretrial conference that will be held later in this case, Magistrate
Judge Anita Marie Boor will explain the process for Pierce to use discovery requests to identify
the names of the John Doe defendants.
C. Federal Tort Claims Act
Pierce also attempts to bring claims under the Federal Tort Claims Act regarding the
delay with his benefits-reinstatement request. The government moves to dismiss solely on the
ground that Pierce did not exhaust his administrative remedies for this claim, stating that Pierce
did not allege that he exhausted these remedies and they attach a declaration from the Office
of the General Counsel stating that it received no administrative tort claim from Pierce. But
Pierce did allege that he filed such a claim, see Dkt. 11, ¶¶ 6, 30. This is a factual issue that
cannot be resolved at the motion-to-dismiss stage. I will deny the government’s motion
regarding this claim.
Pierce does note that he has failed to name the United States as a defendant. See Jackson
v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (“The only proper defendant in an FTCA action
is the United States.”). I will direct the clerk of court to add the United States to the caption.

ORDER
IT IS ORDERED that:
1. The clerk of court is directed to substitute Martin O’Malley, the United States of
America, and John Doe state employees as defendants.
2. Plaintiff’s motion for leave to file a sur-reply, Dkt. 18, is DENIED.
3. Defendant’s motion to dismiss, Dkt. 14, is DENIED.

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4. The clerk of court is directed to set a preliminary pretrial conference.
Entered November 26, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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