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Bynum v. Berryhill

United States District Court, W.D. North Carolina, Statesville Division

August 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Richard L. Voorhees United States District Judge.

         THIS 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.

         I. BACKGROUND

         On 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.[1] (Doc. 1). Plaintiff specifically alleges three causes of action, all relating to an alleged March 2015[2] 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).

         Plaintiff 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).

         Along 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.[3] (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, [4] and thus, his ineligibility determination constituted discrimination on the basis of race.[5] (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).

         In 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).

         Defendant 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.

         On July 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.

         Plaintiff 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.


         Defendant 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.

         A. Rule 12(b)(1) Standard

         When a 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).

         A court 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.”)

         In the 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).

         B. Rule 12(b)(6) Standard

         Rule 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)).

         While 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.

         In 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 marks omitted).

         III. ANALYSIS

         A. Arguments of the Parties

         Defendant's 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. 12(b)(1).

         Turning 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).

         Alternatively, 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.

         Plaintiff, 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.

         B. Motion to Dismiss Analysis

         The 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 ...

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