Opinion
Case Nos. 00-3113-JWL, 00-3119-JWL.
February 26, 2001.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, proceeds pro se and in forma pauperis in these consolidated civil actions brought pursuant to 42 U.S.C. § 405(g). In the order granting plaintiff leave to proceed in forma pauperis, the court noted that plaintiff's consolidated complaints were subject to screening by the court in accordance with 28 U.S.C. § 1915A. (Doc. 6). This matter has been referred to the undersigned for all pretrial proceedings (Doc. 8) and is hereby reviewed pursuant to 28 U.S.C. § 1915A. § 1915A(b) provides that a claim should be dismissed on initial review if the claim is "frivolous, malicious, or fails to state a claim upon which relief may be granted."
The complaints in both cases are identical.
All references to document numbers are those within Case No. 00-3113.
This is an action, brought pursuant to 42 U.S.C. § 405(g), for review of the termination of disability benefits. Plaintiff seeks to recover Supplemental Security Income ("SSI") disability benefits for the period December 15, 1994 through at least January 1, 1997, (Doc. 1, ¶ 17(a)). § 405(g) provides that an individual may obtain review of a final decision of the Commissioner of Social Security "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." In order to confirm the date of the final decision of which plaintiff complains, a telephone conference was held on February 16, 2001. Plaintiff Monty Ray Haynes appeared and participated in the conference. The procedural history of this case, as alleged by plaintiff (and further clarified at the February 16 conference), includes the following:
There was no appearance by defendant inasmuch as defendant has not yet been served. Service of process in an in forma pauperis case is not ordered until screening pursuant to § 1915A is completed.
See Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987) (approving methods other than Martinez Report to assist court in determining whether claims are frivolous or malicious).
(1) On December 15, 1994, plaintiff filed an application for SSI disability benefits. (Doc. 1 at ¶ 5).
(2) The application was initially denied in 1995. (Doc. 1 at ¶¶ 6 and 7).
(3) Following a hearing before ALJ Melvin B. Werner, the ALJ concluded that plaintiff was entitled to disability benefits. Plaintiff further indicates he received disability benefits in January, February and March of 1996.
Plaintiff's complaint states the date of the ALJ decision was January 8, 1996. At the February 16 conference, plaintiff stated that the January 8, 1996 decision was that of the Appeals Council. Plaintiff maintains that both the ALJ and the Appeals Council found that plaintiff was entitled to disability benefits. The exact dates are not crucial to this decision other than to note these decisions preceded the termination notice.
Plaintiff explains he was paroled in January of 1996, but reincarcerated in March of 1996.
(4) The adverse decision of which plaintiff complains was a March 8, 1996 notification that plaintiff's benefits were terminated. Plaintiff alleges his benefits were terminated based upon a finding that alcoholism or drug addiction was a contributing factor material to the Commissioner's determination that plaintiff was disabled. (See Doc. 1 at ¶ 11-12).
Plaintiff repeatedly asserts he received a final adjudication by the Commissioner before March 29, 1996. (See, e.g., Doc. 1 at ¶¶ 9 and 25).
(5) Plaintiff explained at the February 16 conference that he should have received notification that he had 90 days to contest the March 1996 denial notification, but that such notification was not provided. (See also Doc. 1 at ¶ 11). Plaintiff further explained he contacted Social Security in January of 1997 and requested an opportunity to present evidence to contest the termination notification, but was advised that the time to contest the decision had expired.
In 1996, the Social Security Act was amended. See Contract with America Advancement Act of 1996, Pub.L. 104-121, 110 Stat. 847. The amendments which pertain to this action foreclosed payment of disability benefits "if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423 (d)(2)(C). Plaintiff questions application of the 1996 amendments to his previously-filed application for benefits. Plaintiff also argues he was entitled to an opportunity to contest the March 8, 1996 notification that his benefits would cease before his benefits were terminated and claims he could establish a disability notwithstanding any addiction. Plaintiff claims retroactive application of the amendments is unconstitutional and argues the denial of benefits deprived him of a statutorily created property interest without due process in violation of the Fifth Amendment.
§ 1915 review standards
Pursuant to § 1915A, the court is to review prisoner complaints which seek redress from a governmental entity or an officer or employee of a governmental entity. Upon such review, the court is to identify cognizable claims and dismiss any portion of the complaint which is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or which "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). A claim is "frivolous" if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Sixty day limitations period for commencing civil action to review denial of benefits
"The sole statutory grant of district court jurisdiction to review a denial of social security benefits by the Secretary is 42 U.S.C. § 405(g)." Bartlett v. Schweiker, 719 F.2d 1059, 1060 (10th Cir. 1983). Any action contesting a denial of benefits must be commenced within sixty days after mailing of a notice of final decision, 42 U.S.C. § 405 (g) and (h). Such private action may include review of any constitutional issues. See Schweiker v. Chilicky, 487 U.S. 412, 424 (1988).
References to "secretary" instead of "commissioner" are found in cases prior to those governed by the Social Security Independence and Program Improvements Act of -, which transferred the functions of the Secretary of Health and Human Services in Social Security cases to the Commissioner of Social Security effective March 31, 1995.
42 U.S.C. § 405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . 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.
The final decision requirement of § 405(g) has two components:
The first is jurisdictional and nonwaivable — a claim for benefits is presented to the [Commissioner]. The second is waivable — the claiming party exhaust all administrative remedies before requesting judicial review. Heckler v. Day, 467 U.S. 104, 110 n. 14, 104 S.Ct. 2249, 2253 n. 14, 81 L.Ed.2d 88, 95 n. 14 (1984); Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 763-65, 95 S.Ct. 2457, 2465-66, 45 L.Ed.2d 522 (1975); Bartlett v. Schweiker, 719 F.2d 1059, 1060-61 (10th Cir. 1983).
McCauley v. Bowen, 659 F. Supp. 292, 294 (D.Kan. 1986).
A majority of courts (although no Tenth Circuit authority was found) have concluded a termination of benefits, especially coupled with an attempt to contest the termination, satisfy the nonwaivable requirement that the claim be presented to the Commissioner for determination. Alan G. Skutt, J.D., Annotation, When Is Claim Sufficiently Presented to Secretary of Health and Human Services to Permit Judicial Review under §§ 205(g) of Social Security Act ( 42 U.S.C.A. §§ 405(g)), 99 A.L.R. Fed. 198 (1990).
The question of whether plaintiff has exhausted his administrative remedies is questionable. A comprehensive review of exhaustion requirements, however, is not undertaken herein as it appears beyond question that plaintiff has failed to timely file this action within the limitations period of 42 U.S.C. § 405(g). See Bowen v. City of New York, 476 U.S. 467, 478 (1986) (affirming that sixty-day requirement within § 405(g) is a limitations period).
Key to the instant review of plaintiff's complaints is plaintiff's repeated assertion that there had been a final adjudication by the commissioner before March 29, 1996. More specifically, the adverse decision of which plaintiff complains was a March, 1996 notification that plaintiff's benefits were terminated. Using March of 1996 as the beginning date for the limitations period, it is clear plaintiff has not timely filed this action.
Certainly, plaintiff did not file this action for review within sixty days of March 8, 1996. Even if there would be some basis upon which to toll the limitations period based upon plaintiff's allegation that he was not specifically notified of the time to contest the termination decision, there is no reason to toll the limitations period beyond January of 1997. It was not until 3 years later that plaintiff filed this action.
The limitations period may be tolled when "the equities in favor of tolling . . . are `so great that deference to the agency's judgment is inappropriate.'" Bowen, 476 U.S. at 480 (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)).
Plaintiff explained at the telephone conference that he contacted the Social Security Administration in January of 1997 to request an opportunity to challenge the termination notice, but was told his request was out of time.
It is, therefore, recommended that plaintiff's action for review of the termination of his disability benefits be dismissed because it has not been timely filed in accordance with § 405(g). See Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990) (claim may be dismissed as frivolous under § 1915 where affirmative defense of statute of limitations would defeat the claim); Hawks v. Rardin, 731 F. Supp. 1026 (D.Kan. 1990) (dismissal of case, prior to service of process, appropriate where plaintiff filed action outside the statute of limitations).
The tolling provision within K.S.A. 60-513(a)(4), as discussed in Hawks, is not applicable as this case does not require application of state statute of limitations. In any event, plaintiff has not been denied access to the court during the period of his incarceration as evidenced by plaintiff's litigation in Case No. 94-3328.
It appeared from the telephone conference that the factor motivating the filing of this action is plaintiff's expected release date toward the end of this year and plaintiff's desire to reestablish his entitlement to disability benefits before his release. This is not a sufficient basis upon which to toll the limitations period. There is nothing, however, to preclude plaintiff from filing a new application for disability benefits.
While plaintiff retains the ability to contest a social security decision while incarcerated, Brue v. Heckler, 709 F.2d 937, 938-39 (5th Cir. 1983), he is not entitled to benefits during any month in which he is incarcerated. 42 U.S.C. § 402(x)(1)(A).
Americans with Disabilities Act
Plaintiff also seeks relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Title II makes it unlawful for a "public entity" to discriminate against a qualified individual with a disability. 42 U.S.C. § 12132. A public entity is defined as:
(A) Any State or local government;
(B) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C) The National Railroad Passenger Corporation and Commuter Authority.42 U.S.C. § 12131. The ADA claim in this action is brought against Kenneth Apfel, Commissioner of Social Security. The defendant is not a public entity as defined by the ADA. "The language of the statute does not include federal executive agencies nor their secretaries as `public entities.'" Zingher v. Yacavone, 30 F. Supp.2d 446, 452 (D.Vermont 1997). Plaintiff fails to state a claim for relief pursuant to the ADA against defendant Apfel.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the plaintiff's complaints be dismissed because plaintiff fails to state a claim for relief under the ADA and plaintiff's challenges to the termination of his disability benefits are barred by the limitations period of 42 U.S.C. § 405(g).
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to timely file objections may constitute a waiver of a party's right to appeal. Thomas v. Arn, 474 U.S. 140 (1985) and Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to plaintiff. A courtesy copy shall also be mailed to the United States Attorney's Office for the District of Kansas.