Opinion
C/A No. 9:20-2427-RMG-MHC
10-07-2020
Michael E. Hamm, Plaintiff, v. Commissioner of Social Security Administration and State of South Carolina, Defendants.
REPORT AND RECOMMENDATION
The pro se Plaintiff, Michael E. Hamm, filed this action in the Court of Common Pleas for Richland County. Defendants, the Commissioner of the Social Security Administration (Commissioner) and the State of South Carolina, removed the case to this Court on June 26, 2020. ECF No. 1. The State of South Carolina filed a Motion to Dismiss (ECF No. 4) on July 1, 2020; the Commissioner filed a Motion to Dismiss (ECF No. 5) on July 6, 2020; and the Court entered a Roseboro Order, advising Plaintiff of the importance of the dispositive motions and the need for him to file an adequate response, on July 13, 2020. ECF Nos. 9 and 10. Plaintiff has not filed any response to either Defendant's Motion to Dismiss.
PLAINTIFF'S FAILURE TO PROSECUTE
This action should be dismissed for Plaintiff's failure to prosecute and failure to respond to the Court's Roseboro Order. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, a court may sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. The United States Court of Appeals for the Fourth Circuit has held that a court, in reviewing such a dismissal, should "ascertain (1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the existence of a sanction less drastic than dismissal." Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (internal quotation marks and citation omitted).
As noted above, Plaintiff was specifically advised in the Roseboro Order of the importance of the dispositive motions and of the need for him to file an adequate response. Plaintiff was also specifically advised that if he failed to file a properly supported response, Defendants' motions may be granted, thereby ending his case. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro Order, Plaintiff has failed to respond to the Roseboro Order or to contact the Court in any way.
Plaintiff is proceeding pro se and, thus, is solely responsible for his refusal to comply with the Court's Order. See Craft v. Astrue, No.1:10CV9, 2012 WL 6569021, at *2 (M.D.N.C. Dec. 17, 2012) (finding, pursuant to the standard set forth in Chandler Leasing, that the plaintiff proceeded pro se from the outset and thus demonstrated she was capable of filing pleadings and paper and she alone bore the responsibility for her failure to prosecute her case.). Defendants are suffering prejudice because of having to expend time and resources on a case in which the Plaintiff is unresponsive. Additionally, no sanctions other than dismissal appear to exist as Plaintiff is indigent and proceeding in forma pauperis (such that he is not subject to monetary sanctions). Further, because Plaintiff has failed to fully comply with an order of this court, it does not appear that any sanction less drastic than dismissal is available. See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (finding the magistrate judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal because any other course would have placed the credibility of the court in doubt and invited abuse).
Therefore, this case is subject to dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ballard, 882 F.2d at 95 (finding that dismissal of a suit did not constitute abuse of discretion where the plaintiff "failed to respond to a specific directive from the court"). Accordingly, it is recommended that this action be dismissed without prejudice for lack of prosecution and failure to respond to a court order. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed. R. Civ. P.; see also Coker v. International Paper Co., No. 08-1865, 2010 WL 1072643, at * 2 (D.S.C. Mar. 18, 2010) (noting that plaintiff can abandon claims by failing to address them in response to a dispositive motion.); Brown v. Nelsen, No. 2:19-CV-1613-RMG, 2020 WL 502677 (D.S.C. Jan. 31, 2020) (finding that dismissal for failure to prosecute should be without prejudice where the court lacked information indicating that plaintiff was deliberately proceeding in a dilatory fashion).
In the alternative, it is recommended that Defendant Commissioner's Motion to Dismiss be granted, in part, and Defendant State of South Carolina's Motion to Dismiss be granted, as discussed below.
MOTIONS TO DISMISS
The Commissioner moves to dismiss the Complaint for lack of subject-matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted. See ECF No. 5; Fed. R. Civ. P. 12(b)(1), (5), and (6); see also Fed. R. Civ. P. 12(h)(3). The State of South Carolina moves to dismiss the Complaint based on Plaintiff's failure to state a claim upon which relief can be granted. See ECF No. 4, Fed. R. Civ. P. 12(b)(6).
A. FACTS/BACKGROUND
Plaintiff is currently being held in the custody of the South Carolina Department of Mental Health (SCDMH) as a sexually violent predator (SVP) under the provisions of the South Carolina Sexually Violent Predator Act (SVP Act), S.C. Code Section 44-48-10 et seq., as part of the Sexually Violent Predator Treatment Program (SVPTP). See, e.g., Hamm v. Scaturo, No. 9:16-2960-RMG-BM, 2017 WL 3835809 (D.S.C. Aug. 10, 2017), report and recommendation adopted by, 2017 WL 3741305 (D.S.C. Aug. 29, 2017). The SVPTP was previously administered by staff employed by SCDMH; however, beginning December 1, 2016, a private contractor, Correct Care of South Carolina doing business as Wellpath, began operating the SVPTP. See, e.g., Lott v. Budz, No. 6:19-CV-1087-RMG-KFM, 2020 WL 3052124, at *1 (D.S.C. Apr. 1, 2020), report and recommendation adopted sub nom. Lott v. Budtz, 2020 WL 3051320 (D.S.C. June 8, 2020); see also ECF No. 5-1 at 1-2.
Plaintiff, proceeding pro se, has filed over twenty cases in this Court. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (a federal court may take judicial notice of the contents of its own records).
Plaintiff asserts that, since 2014, he has written the Social Security Administration (SSA) on three occasions to "seek help in receiving partial or full disability benefits due to his continual health issues." ECF No. 1-1 at 3. He asserts that his first correspondence was returned, and he received no response to his second and third attempts to contact the SSA. Id. Plaintiff alleges that he has been disabled since 2013, "right after his bowel resection for Crohn's disease," and he was diagnosed with chronic white matter disease in September 2018. Plaintiff requests a response from the SSA and an award of disability benefits. He also contends that, as a civilly committed individual, he is eligible to be paid disability benefits. Id. at 3-4.
B. COMMISSIONER'S MOTION TO DISMISS
The Commissioner first contends that this action should be dismissed pursuant to Rules 12(b)(1) and 12(h)(3) because Plaintiff failed to exhaust his administrative remedies as to any claim for disability benefits, such that there is no "final judgment" giving this Court subject-matter jurisdiction. ECF No. 5-1 at 3-7. A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). Pursuant to Rule 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Lack of subject-matter jurisdiction may be raised at any time by a party or the Court. See Arbaugh, 546 U.S. at 506-507.
"When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, "the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). "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." Id.
In this case, Plaintiff has not specified any basis for subject matter jurisdiction and "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff appears to allege that he is entitled to either Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act) or Social Security Income (SSI) under Title XVI of the Act. ECF No. 1-1. Judicial review in cases arising under Title II and Title XVI of the Act is authorized pursuant to Title 42, United States Code, Section 405(g). Congress thus has made clear that, for claims arising under the Act, judicial review is permitted only in accordance with Section 405(g). See Heckler v. Ringer, 466 U.S. 602, 614-615 (1984); Mathews v. Eldridge, 424 U.S. 319, 327 (1976). As such, 42 U.S.C. § 405(g) is the exclusive jurisdictional basis for judicial review in cases arising under the Act. However, this Court lacks jurisdiction over Plaintiff's claims against the Commissioner because there is no "final decision" of the SSA, as required by the Act, for the Court to review.
Where a right, such as the right to sue, is created by statute, with that statute providing a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328, 331, (1919).
"[T]he 'terms of the [United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Sherwood, 312 U.S. 584, 586 (1941). Section § 405 provides, in pertinent part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g) (emphasis added). Additionally, the statute provides:
No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security
or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28, United States Code, to recover on any claim arising under this title.42 U.S.C. § 405(h).
Thus, under § 405, federal courts generally do not have jurisdiction to review a decision by the Commissioner absent a final decision of the Commissioner. See Califano v. Sanders, 430 U.S. 99 (1977). The Act does not define "final decision," instead leaving it to the SSA to give meaning to that term through regulations. See 42 U.S.C. § 405(a); Weinberger v. Salfi, 422 U.S. 749, 766 (1975); see also Smith v. Berryhill, 139 S. Ct. 1765, 1771-1772 (2019) (noting that "the phrase 'final decision' clearly denotes some kind of terminal event" in finding that Smith received a final decision where he appealed the ALJ's decision to the Appeals Council and the Appeals Council dismissed the action as untimely). The SSA regulations provide that a claimant must complete a four-step administrative review process, as outlined further below, to obtain a judicially reviewable final decision. 20 C.F.R. §§ 404.900(a), 416.1400(a); see Califano v. Sanders, 430 U.S. at 101-102. If the claimant does not pursue his administrative appeal rights, the administrative determination or decision becomes binding and there is no final decision for the purpose of judicial review. See 20 C.F.R. §§ 404.905, 404.921, 404.955, 404.981, 416.1405, 416.1421, 416.1455, 416.1481; Sims v. Apfel, 530 U.S. 103, 107 (2000).
There are two narrow exceptions to the district court's lack of jurisdiction. These exceptions include a claimant raising of a colorable claim of unconstitutionality, see Young v. Bowen, 858 F.2d 951, 954 (4th Cir.1988), and when the Commissioner, in denying a petition to reopen an earlier application, actually addresses the merits of the claim, thereby constructively reopening the prior application. See McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir. 1981). Here, however, the exceptions are inapplicable. There is no allegation that there was a "de facto" reopening by the Commissioner and no colorable constitutional claim has been asserted.
Under SSA regulations, an individual claiming entitlement to benefits first receives an initial determination. 20 C.F.R. §§ 404.902; 416.1402. If dissatisfied with this determination, a claimant may ask for a reconsideration. 20 C.F.R. §§ 404.907, 416.1407. A claimant, if dissatisfied with the reconsideration determination, may request a hearing before an Administrative Law Judge (ALJ). 20 C.F.R. §§ 404.929, 416.1407. If the claimant is dissatisfied with the ALJ's hearing decision, the claimant may request that the Appeals Council review the decision. 20 C.F.R. §§ 404.967, 416.1455, 416.1467, 416.1468. The Appeals Council may deny the request for review and allow the ALJ's decision to stand as the final decision of the Commissioner, or the Appeals Council may grant the request for review and issue its own decision. 20 C.F.R. §§ 404.967, 416.1467. In either event, the claimant may then seek judicial review of the Commissioner's final decision by filing an action in federal district court within sixty days after receiving notice of the Appeals Council's action. Id.; 20 C.F.R. §§404.981; 416.1481.
In this case, Plaintiff has not alleged that he properly applied for disability benefits based on his allegedly disabling Crohn's disease and/or neurological disease. Even if Plaintiff had alleged a proper application for benefits, he has not alleged that he received an initial determination or, more importantly, that he received a "final decision" from the SSA, which is necessary to allow judicial review.
A claim for DIB must be filed on an application form prescribed by the SSA. See 42 U.S.C. § 423; 20 C.F.R. §§ 404.603, 404.610. A claim for SSI must be filed on a form prescribed by the SSA. See 42 U.S.C. §§ 1382(c), 1383; 20 C.F.R. §§ 416.305, 416.310. Here, Plaintiff has not alleged that he filed an application (or applications) for DIB and/or SSI on the form(s) prescribed by the SSA.
Moreover, Plaintiff has not alleged any exception to the exhaustion requirement. Courts may excuse failure to exhaust in certain special cases, such a where the claimant raises a challenge wholly collateral to his claim for benefits and makes a colorable showing that his injury could not be remedied by the retroactive payment of benefits after exhaustion. See Heckler v. Ringer, 466 U.S. at 618; Califano v. Sanders, 430 U.S. at 109. Here, however, any request by Plaintiff for disability benefits is not collateral to his claim for benefits and instead is his claim for benefits, such that any injury could be remedied retroactively.
Therefore, the Commissioner's Motion to Dismiss pursuant to Rules 12(b)(1) and 12(h)(3) should be granted because this Court lacks jurisdiction over Plaintiff's claim as he has not alleged that he exhausted his administrative remedies or alleged an exception to exhaustion. See 42 U.S.C. § 405(g); Heckler v. Ringer, 466 U.S. at 618-619 (dismissal appropriate because of failure to exhaust); Marshall v. Shalala, 5 F.3d 453, 455 (10th Cir. 1993), cert. denied, 510 U.S. 1198 (1994) (claimant failed to state colorable constitutional claim and was not entitled to waiver of exhaustion requirements). Accordingly, the undersigned recommends dismissing Plaintiff's Complaint without prejudice.
Because this Court lacks jurisdiction over Plaintiff's claim, it is not necessary at this time to reach the question of whether the Commissioner should be dismissed for lack of proper service pursuant to Rule 12(b)(5). Additionally, it is premature to address the issue of whether Plaintiff's confinement in the SVPTP makes him ineligible for disability benefits.
A person is ineligible for SSI disability payments "with respect to any month if throughout such month he is an inmate of a public institution." 42 U.S.C. § 1382(e)(1)(A) (emphasis added). "[I]f you are a resident of a public institution when you apply for SSI benefits and meet all other eligibility requirements, you cannot be eligible for payment of benefits until the first day of the month following the day of your release from the institution." 20 C.F.R. § 416.211 (emphasis added). The regulations define a public institution as "an institution that is operated by or controlled by ... a state." 20 C.F.R. § 416.201.
D. STATE OF SOUTH CAROLINA'S MOTION TO DISMISS
The State of South Carolina moves to dismiss this action for failure to state a claim against it, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 4. "The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses."). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading 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), such that the defendant will have "fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). "[T]he facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the Court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate "the complaint in its entirety, as well as documents attached or incorporated into the complaint." Id. at 448. The court may consider a document not attached to the complaint, so long as the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). "A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits." Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, principles requiring generous construction of pro se complaints do "not require courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Liberally construed, Plaintiff appears to allege that he has been harmed because the State of South Carolina will not tell him why the Veterans Administration pays benefits "in half while in prison and while in civil commitment," but "civil commitment detainees are not allowed to receive half of their disability payments. ECF No. 1-1. He also claims that, pursuant to Youngberg v. Romeo, 457 U.S. 307 (1982), he should be treated as a pretrial detainee and, thus, awarded half of his disability benefits. Id.
Plaintiff has pointed to no provision in Youngberg that directs that persons civilly committed to the SVPTP be granted disability benefits.
However, Plaintiff has asserted no facts to indicate that the State of South Carolina took any of the alleged actions against him, is responsible for paying him disability benefits, or is in control of the polices that determine whether disability benefits are paid to him. Plaintiff has not alleged that the State of South Carolina denied him disability benefits. Further, he has asserted no facts to show that the State of South Carolina, which is not part of the federal government and has no control or jurisdiction over the SSA, was responsible for the payment of Social Security disability benefits. Giving liberal construction to Plaintiff's claims does not mean that the Court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) ("Only those questions which are squarely presented to a court may properly be addressed."). Thus, even under this less stringent standard, this pro se complaint is subject to summary dismissal, see Estelle v. Gamble, 429 U.S. 97, 106-107 (1976)), and the State of South Carolina's Motion to Dismiss, ECF No. 4, should be granted.
RECOMMENDATION
It is, therefore, recommended that this action be DISMISSED without prejudice, pursuant to Rule 41, Fed. R. Civ. P. In the alternative, it is recommended that Defendant Commissioner's Motion to Dismiss (ECF No. 5) be GRANTED for lack of subject matter jurisdiction; that Defendant State of South Carolina's Motion to Dismiss (ECF No. 4) be GRANTED for failure to state a claim; and that Plaintiff's Complaint be DISMISSED without prejudice.
The parties are referred to the Notice Page attached hereto.
/s/_________
Molly H. Cherry
United States Magistrate Judge October 7, 2020
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).