Opinion
No. 00-3113-JWL
July 16, 2001
MEMORANDUM AND ORDER
Plaintiff is a state prisoner who brings this action to challenge the Commissioner of the Social Security Administration's decision to terminate his disability benefits. Plaintiff seeks reversal of the Commissioner's decision and a determination that the decision was discriminatory in violation of the Americans with Disabilities Act (ADA). In accordance with 28 U.S.C. § 1915A, the court referred the case to Magistrate Judge Walter to perform a preliminary screening of whether plaintiff's complaint presented any cognizable claims. Magistrate Judge Walter issued a Report and Recommendation on February 26, 2001 finding that no cognizable claims existed and opining that plaintiff's case should be dismissed in its entirety (Doc. 12). On March 9, 2001, plaintiff filed a timely objection to the Report and Recommendation (Doc. 13), which is now before the court. For the reasons discussed below, the court overrules plaintiff's objection, adopts the Report and Recommendation of the magistrate judge, and dismisses plaintiff's complaint in its entirety.
Plaintiff proceeds pro se and in forma pauperis.
I. Background
The following facts are viewed in the light most favorable to plaintiff.
On January 8, 1996, the Commissioner of the Social Security Administration (SSA) issued a decision finding that plaintiff was suffering from ankylosing spondylitis, personality disorders, and substance addiction, which entitled him to Social Security disability benefits. Plaintiff received benefits in January, February, and March of 1996. However, on March 8, 1996, the Commissioner notified plaintiff that his benefits were being terminated because a new amendment to the Social Security Act foreclosed payment "if alcoholism or drug addiction [was] . . . a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C).
Although an individual may not receive disability benefits during any month in which he is incarcerated, 42 U.S.C. § 402(x)(1)(A), plaintiff explains that he was paroled in January 1996 and not reincarcerated until March 1996.
Plaintiff brings the instant action to challenge the Commissioner's decision to terminate his benefits. Plaintiff asserts that he was not given notice, as required by the amendment, that he had 120 days to seek a redetermination of his eligibility for disability benefits by establishing a disability notwithstanding any addiction. Plaintiff claims that the termination of benefits without notice of his right to seek a redetermination violated his Fifth Amendment due process and equal protection rights. Plaintiff further alleges that the termination violated the ADA because he was denied benefits based on a disability.
28 U.S.C. § 1915A requires the court to screen all civil complaints "in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental agency" to determine whether the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted." Pursuant to Fed.R.Civ.P. 72(b), the court referred this case to Magistrate Judge Walter to perform the initial screening. On February 26, 2001, Magistrate Judge Walter issued a Report and Recommendation opining that plaintiff's case should be dismissed in its entirety. First, without reaching the merits of plaintiff's claims for disability benefits, Magistrate Judge Walter found that plaintiff was barred from seeking review of the Commissioner's March 1996 decision by the 60 day statute of limitations found in 42 U.S.C. § 405(g). Second, Magistrate Judge Walter found that neither defendant Apfel, Commissioner of the SSA, nor the SSA itself, was a "public entity" subject to the mandates of the ADA, and, thus, plaintiff's ADA claim failed to state a claim upon which relief could be granted.
On March 9, 2001, plaintiff filed a timely objection to the Report and Recommendation. While not contesting the magistrate's underlying legal findings, plaintiff objects to the magistrate's conclusion that the court should dismiss the case. First, plaintiff does not dispute the finding that the statute of limitations would typically bar the court's review of the Commissioner's termination of his disability benefits, but plaintiff argues that the limitations period should be equitably tolled. Second, plaintiff does not dispute the finding that he has failed to state a claim under the ADA, but plaintiff asserts that, rather than dismiss his ADA claim, the court should grant him leave to amend his complaint.
Plaintiff also re-asserts the merits of his disability claim, but the court will not address such arguments because it adopts the magistrate's finding that the claim is barred by the statute of limitations.
II. Standard of Review
The court reviews de novo those portions of the magistrate's report and recommendation to which written objections have been made. Fed.R.Civ.P. 72(b). Portions of the report and recommendation which have not been objected to are to be taken as true and judged on the applicable law. See Campbell v. United States for the Northern Dist. of California, 501 F.2d 196, 206 (9th Cir. 1974); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (holding that "[i]n the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate."). The district court is afforded considerable discretion in determining what reliance it may place upon the magistrate judge's findings and recommendations. See Andrews v. Deland, 943 F.2d 1162 (10th Cir. 1991) (citing United States v. Raddatz, 447 U.S. 667 (1980)). Upon receipt of the magistrate's report and recommendation, the court may accept, reject, or modify the magistrate's disposition. 28 U.S.C. § 636(b)(1) (1994); Fed.R.Civ.P. 72(b).
III. Claim for Review of Commissioner's Decision Terminating Disability Benefits
Plaintiff brings this action to challenge defendant's March 1996 decision to terminate plaintiff's social security disability benefits. Pursuant to 42 U.S.C. § 405(g), an individual may seek judicial review of a final decision of the Commissioner of the SSA by commencing a civil action "within sixty days after mailing to him of notice of such decision." As Magistrate Judge Walter correctly noted, plaintiff did not file his complaint until more than four years after receiving notice of the Commissioner's decision — significantly after the 60 day deadline. Plaintiff does not dispute the magistrate's finding that his complaint is untimely, but argues that the court should toll the limitations period and allow his complaint to stand. The court, in its discretion, declines to do so. See United States v. Clymore, 245 F.3d 1195, 1198 (10th Cir. 2001) ("[T]he application of equitable doctrines rests in the sound discretion of the district court.").
The court does not address the separate issue of whether plaintiff has exhausted his administrative remedies as required by § 405(g). See Bowen v. City of New York, 476 U.S. 467, 482 (1986). Plaintiff does not object to the magistrate judge's finding that his exhaustion is questionable, and even if plaintiff has exhausted his administrative remedies, plaintiff's claim is barred by the 60 day statute of limitation.
The Supreme Court has declared that the 60 day requirement in § 405(g) "constitutes a period of limitations . . . [which is subject to the] application of traditional equitable tolling principle[s]." Bowen v. City of New York, 476 U.S. 467, 478-480 (1986). Equitable tolling is to be used, however, only in rare cases where the equities in favor of tolling are compelling. See id. at 480-81.
Federal courts have typically extended equitable relief only sparingly. We have [however] allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). In the Tenth Circuit, equitable tolling is typically permitted when the defendant's conduct rises to the level of active deception, when the plaintiff has been lulled into inaction by the defendant, and when extraordinary circumstances have prevented the plaintiff from filing his or her claim within the statutory period. See Clymore, 245 F.3d at 1199.
Applying these traditional equitable tolling principles, however, the court is convinced that tolling of the 60 day requirement is not appropriate in this instance. Construing plaintiff's pleadings liberally pursuant to Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the only possible basis suggested for equitable tolling is the fact that defendant allegedly did not give plaintiff notice that he was entitled to seek a redetermination from the SSA of his eligibility for disability benefits within 120 days of defendant's decision terminating plaintiff's benefits. However, defendant's failure to give plaintiff notice of his administrative options does not speak to the reason why plaintiff did not timely pursue his judicial options. Moreover, even if the court were to toll the statute of limitations during the time period that plaintiff was possibly unaware of his right to seek a redetermination of disability, this time period would be no longer than ten months. Plaintiff admits that in January 1997, within ten months of receiving notice that the Commissioner had made a decision to terminate his benefits, plaintiff contacted the SSA and attempted to contest the termination of his benefits. As plaintiff's complaint is nearly four years delinquent, tolling the statute of limitations for ten months will not save his claim.
Plaintiff has provided the court with no indication that he has diligently pursued his federal claims over the past four years or that it was defendant's actions that have kept him from doing so. This is not one of the rare instances in which equity requires the tolling of the limitation period. Accordingly, the court adopts the recommendation of the magistrate judge and dismisses as time barred plaintiff's claim for review of the Commissioner's termination decision. As noted by Magistrate Judge Walter, however, nothing precludes plaintiff from seeking a new determination from the SSA that he is disabled and entitled to receive benefits following his expected release from prison at the end of this year.
IV. Claim for Relief under the ADA
Plaintiff also seeks relief under Title II of the ADA which makes it unlawful for a "public entity" to discriminate against a qualified individual with a disability. 42 U.S.C. § 12132. As Magistrate Judge Walter explained, Title II limits the definition of "public entity" to state or local governments, instrumentalities of state or local governments, and the National Railroad Passenger Corporation and Commuter Authority. 42 U.S.C. § 12131. Thus, the court finds that Magistrate Judge Walter correctly reported that neither defendant nor the SSA is a "public entity" subject to the prescriptions of the ADA. While not objecting to this finding, plaintiff asserts that, rather than dismiss his ADA claim, the court should grant him leave to amend his complaint. Plaintiff does not explain what changes he would make to his ADA claim in an amended complaint, and the court can foresee no changes which could make plaintiff's ADA claim viable. As an amendment would therefore be futile, the court adopts the recommendation of the magistrate judge and dismisses plaintiff's ADA claim for failure to state a claim on which relief may be granted. See DeSpain v. Uphoff, No. 99-8106, 2000 WL 1228003 (10th Cir. Aug. 10, 2000) (dismissal of prisoner complaint for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915A, is permissible prior to service on defendant and without affording plaintiff an opportunity to amend complaint); 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring court to dismiss an in forma pauperis complaint if, at any time, the court determines that the case fails to state a claim on which relief may be granted).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's objection to the magistrate's Report and Recommendation (Doc. 13) is overruled. The findings and conclusions in the Report and Recommendation are adopted by the court, and plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.