United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on Defendant's Motion
to Dismiss for lack of subject matter jurisdiction under
Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon
which relief can be granted under Fed.R.Civ.P. 12(b)(6).
(Doc. 9; see Doc. 10). Also before the Court are
Plaintiff's Motion for Entry of Judgment (Doc. 13);
Plaintiff's Motion to Compel, Motion for Prima Facie
Evidence, Motion to Proceed as a Veteran, and Motion for
Protective Order (Doc. 17); Plaintiff's Notice of
Condemnation (Doc. 18); Plaintiff's Motion to Proceed in
Forma Pauperis as a Veteran, Motion for Fees/Motion for Jury,
and Motion for Writ of Assistance (Doc. 19); and
Plaintiff's Motion for Hearing and Motion for Leave to
Proceed as a Veteran (Doc. 20). On July 21, 2016, this Court
issued an Order giving Plaintiff fourteen (14) days to
respond to Defendant's Motion to Dismiss. (Doc. 11). The
time for Plaintiff to respond having elapsed, this matter is
ripe for disposition. For the reasons stated below,
Defendant's Motion to Dismiss (Doc. 9) is
GRANTED; Plaintiff's motions (Docs. 13,
17, 18, 19, and 20) are DENIED; and
Plaintiff's Complaint is DISMISSED.
January 7, 2016, Plaintiff Jonathan Bynum, proceeding pro
se, filed this action alleging that the Social Security
Office in Gastonia, North Carolina, violated his civil
rights. (Doc. 1). Plaintiff specifically alleges
three causes of action, all relating to an alleged March
denial of his application for Supplemental Security Income
(“SSI”). (See Doc. 1 at 2; Doc. 10 at
1). In the first count (“Count One”), entitled
“Discrimination, ” Plaintiff alleges that his SSI
application may have been denied out of prejudice against his
“interest, age, and race.” (Doc. 1 at 3). The
second count (“Count Two”), entitled
“Procedural Due Process, ” alleges that
“defendant appears to be claim jumping
plaintiff.” (Id.). The third count
(“Count Three”), entitled “Civil death,
” alleges that Plaintiff's “civil rights are
deprived” by a “conviction leaving plaintiff with
civil disabilitys [sic].” (Id. at 4).
Plaintiff asserted federal jurisdiction under 42 U.S.C.
§§ 1983 and 1985. (Id. at 1).
alleges injury of “expenses [a]nd time lost” as a
result of “[l]ots of trip [sic] and hours waiting in
waiting room at SSA [the Social Security Administration
office].” (Id. at 3). Plaintiff's request
for relief entails damages for “forfeiture of a social
security benifit [sic] and delay since 1995, ”
specifically enumerated as “special damages liquidation
damages, award $200, 000” as well as “$20, 000,
000, ad [d]amnum.” (Id. at 6).
with the Complaint, Plaintiff filed an “Appendix”
including portions of the fact sheet from the Social Security
Administration (“SSA”) displaying how the SSA
calculated Plaintiff's ineligibility for SSI in November
2009. (Doc. 1-1). According to the SSA fact
sheet, Plaintiff's total social security benefits for
December 2009 other than SSI were $713.00. (Id. at
4). Subtracting $20.00 as required, the remaining $693.00
exceeded the $674.00 monthly total towards which SSI funds
could be paid. (Id.). However, Plaintiff alleged
that he only made $20 per month in social security income,
thus, his ineligibility determination constituted
discrimination on the basis of race. (Id. at 1).
Plaintiff closes the Appendix requesting an “abuse of
discretion” review of a judge's decision to deny
SSI benefits as well as “retroactive SSI payment since
1995 or amount of $30, 000.00” to be expedited due to
“homelessness, hardship, [and] malicious prosecution .
. . .” (Id. at 5).
addition to the Complaint and Appendix, Plaintiff filed a
Motion to Proceed In Forma Pauperis
(“IFP”). (Doc. 2). Notably, Plaintiff's
application for IFP did not contradict the Defendant's
Appendix statements regarding Plaintiff's income for
disability. (Id.). This Court granted
Plaintiff's Motion to Proceed IFP by Order filed March
24, 2016. (Doc. 3).
was served with the pleadings on April 14, 2016. (Doc. 7.) On
June 13, 2016, Defendant filed a timely Motion to Dismiss
(Doc. 9) and accompanying Memorandum in Support of Motion to
Dismiss (“Memorandum”) (Doc. 10). Defendant also
filed a Declaration of Kathie Hartt (Doc. 10-1), the Chief of
Court Case Preparation for Branch 2 of the Office of
Appellate Operations for the Social Security Administration,
on the same day.
21, 2016, this Court filed an Order advising Plaintiff that
he had an opportunity to respond to Defendant's Motion to
Dismiss within fourteen (14) days, and the Order was sent to
Plaintiff by U.S. Mail. (Doc. 11). The Order specifically
warned Plaintiff that his action may be dismissed if he did
not appropriately address the Motion to Dismiss.
(Id.). Plaintiff did not file a timely response.
Instead, on October 20, 2016, Plaintiff filed a
“Notice/Memorandum” certifying service of
“Non-Injunction Bonds, Duty to Supplement services and
filing, Content of Initial Disclosure” upon the U.S.
Attorney on October 6, 2016. The Notice/Memorandum also
alleges service on the Clerk of this Court. (Doc. 12). None
of the documents allegedly served on the U.S. Attorney's
Office were filed along with the Notice. (See id.).
Further, none of the titles appear to address the
Defendant's Motion to Dismiss. Even if this Court assumes
arguendo that the documents were in some way an
attempt to respond-albeit untimely by two months-none of the
documents were submitted to the Court for consideration.
subsequently filed various motions, none of which responded
to the Motion to Dismiss. In light of the Court's
decision to dismiss this action, Plaintiff's motions may
be deemed moot. The Court will, however, review each motion
in turn to ensure that none of Plaintiff's motions might
affect the Court's ruling on the Motion to Dismiss.
STANDARDS OF REVIEW
moves for dismissal pursuant to Rule 12(b)(1) and Rule
12(b)(6) of the Federal Rules of Civil Procedure and,
alternatively, on statute of limitations grounds.
Rule 12(b)(1) Standard
motion to dismiss raises the defense of sovereign immunity
and the United States has not waived sovereign immunity, the
motion is properly treated as one arising under Fed.R.Civ.P.
12(b)(1). Anderson v. United States, 669 F.3d 161,
164 (4th Cir. 2011) (citing Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995)). This is a
threshold issue which a court must address before considering
the merits of a case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999).
may dismiss a case for lack of subject matter jurisdiction on
any of the following bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the undisputed facts plus the court's
resolution of disputed facts. Johnson v. United
States, 534 F.3d 958, 962 (8th Cir. 2008) (citing
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981)). A motion to dismiss for lack of subject matter
jurisdiction can either consist of a “facial”
challenge or a “factual” challenge. Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009). First,
the defendant can contend that the complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based. In that situation, the facts alleged in the complaint
are taken to be true and the motion must be denied if the
complaint alleges sufficient facts to invoke subject matter
jurisdiction. Id.; Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982) (when defendant contends that the
complaint “fails to allege facts upon which subject
matter jurisdiction can be based . . . all the facts alleged
in the complaint are assumed to be true and the plaintiff, in
effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.”)
alternative, a defendant can contend that jurisdictional
allegations in the complaint are not true. Kerns,
585 F.3d at 192. When a challenge is raised to the factual
basis of subject matter jurisdiction, the burden of proving
jurisdiction is on the plaintiff. The court is to regard the
allegations as mere evidence on the issue and may consider
evidence outside the pleading without converting the
proceeding to one for summary judgment. The moving party
should prevail “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
Rule 12(b)(6) Standard
12(b)(6) of the Federal Rules of Civil Procedure provides for
the dismissal of a claim based upon a plaintiff's
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In evaluating a motion to dismiss, a
court must construe the complaint's factual allegations
“in the light most favorable to the plaintiff”
and “must accept as true all well-pleaded
allegations.” Randall v. United States, 30
F.3d 518, 522 (4th Cir. 1994). A court, however,
“‘need not accept the legal conclusions drawn
from the facts, '” nor “‘accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.'” Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008) (quoting E. Shore Mkts.,
Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180
(4th Cir. 2000)).
Fed.R.Civ.P. 8(a)(2) does not require “detailed factual
allegations, ” a complaint must offer more than
“naked assertion[s]” and unadorned “labels
and conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In order to survive a Fed.R.Civ.P. 12(b)(6)
motion to dismiss, the facts alleged must be sufficient to
“raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). Requiring
plausibility “does not impose a probability requirement
at the pleading stage” id. at 556, but does
demand more than “a sheer possibility that a defendant
has acted unlawfully, ” Iqbal, 556 U.S. at
678. Ultimately, a claim is facially plausible when the
factual content allows for the reasonable inference that the
defendant is liable for the misconduct alleged. Id.
applying this standard, the Supreme Court has reiterated that
“[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted). However, the Fourth Circuit has
“not read Erickson to undermine
Twombly's requirement that a pleading contain
more than labels and conclusions[.]”
Giarratano, 521 F.3d at 304 n.5 (internal quotation
marks omitted); accord Atherton v. Dist. of Columbia Off.
of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009)
(“But even a pro se complainant must plead
‘factual matter' that permits the court to infer
‘more than the mere possibility of
misconduct.'” (quoting Erickson, 551 U.S.
at 94; Iqbal, 556 U.S. at 679)). The rules governing
the generous construction of pro se pleadings
“do not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Ashby v. City of Charlotte,
121 F.Supp.3d 560, 562 (W.D. N.C. 2015) (internal quotation
Arguments of the Parties
Memorandum asserts that, to the extent Plaintiff's
Complaint could be construed as seeking review of the denial
of his SSI application, the Court lacks subject matter
jurisdiction to review the claim, as Plaintiff failed to
request a hearing or otherwise appeal within 60 days of his
notification of denial. (Doc. 10 at 4-5; see also
Doc. 10-1 at 6-8). Additionally, the denial of
Plaintiff's request for reconsideration did not
constitute a “final decision of the Commissioner of
Social Security made after a hearing” as required for
judicial review. (Doc. 10 at 1-2). See also 42
U.S.C. §§ 405(g), 1383(c)(3). Thus, Defendant
asserts, the Court should dismiss any Social Security claim
for lack of subject matter jurisdiction under Fed.R.Civ.P.
to the causes of action asserted under 42 U.S.C. §§
1983 and 1985, Defendant asserts that all claims made
pursuant to those statutes should be dismissed under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (Doc. 10
at 2-4). As the SSA is a federal agency, and not a state
actor under state law, Defendant asserts that neither federal
officers nor agencies can be charged with violations of
§§ 1983 or 1985. (Doc. 10 at 2) Further, Defendant
asserts that the Federal Government had not consented to the
suit under the Civil Rights Acts, 42 U.S.C. §§ 1981
et seq., and therefore Plaintiff's claims are
barred by sovereign immunity. (Doc. 10 at 2-3). Thus, as
Plaintiff's alleged violation of rights all seem to stem
from the denial of SSI benefits, Defendant asserts that even
the most liberal construction of the allegations fails to
state any causes of action that could survive dismissal under
Fed.R.Civ.P. 12(b)(6). (Doc. 10 at 3).
Defendant asserts that even if this Court does not dismiss
the Complaint pursuant to Rule 12(b)(1) or Rule 12(b)(6), the
suit should be dismissed as untimely. (Doc. 10 at 5-6).
Defendant argues that all of Plaintiff's claims arise
from the denial of his application for SSI, and any civil
action challenging the decision of the Commissioner of Social
Security must be brought within 60 days of notification.
(Doc. 10 at 6-7); see also 42 U.S.C. §§
405(g), 1383(c)(3). Thus, Defendant asserts that even if this
Court considered the May 20, 2010, denial of reconsideration
to be a final, reviewable decision of the Commissioner,
Plaintiff's Complaint was filed over six years later and
should thus be barred by the statute of limitations.
despite Court-provided notice of the potential consequences
of not responding to the Motion to Dismiss, has failed to do
so. The Court has reviewed Plaintiff's later-filed
motions and finds none of them address the arguments made by
Defendant in support of her Motion to Dismiss.
Motion to Dismiss Analysis
Court will consider each of Plaintiff's three causes of
action in light of the Motion to Dismiss. Because pro
se Plaintiff's Complaint may also be construed as
seeking review of the denial of his claim for SSI, the Court