Opinion
C. A. 6:21-cv-02281-SAL-KFM
12-07-2021
Opal Boatley, Plaintiff, v. Kilolo Kijakazi, Commissioner of Social Security, Defendant.[1]
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This is an appeal from a denial of social security benefits filed by the plaintiff proceeding pro se and in forma pauperis (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint in this action was entered on the docket on July 26, 2021 (doc. 1). By orders dated July 27, 2021, and August 25, 2021, the plaintiff was instructed to complete certain documents relating to payment of the filing fee as well as to answer special interrogatories to confirm the court's jurisdiction in this matter (docs. 8; 10). The orders directed the plaintiff to notify the clerk in writing of any change of address and warned that if she failed to keep her address updated with the court, her case may be subject to dismissal (docs. 8 at 2; 10 at 2). The orders also warned the plaintiff that failure to provide the necessary information and paperwork within the timetable set forth in the orders may subject the case to dismissal (docs. 8 at 1; 10 at 1). On September 7, 2021, the second order was returned to the court as undeliverable mail and stamped, “return to sender refused unable to forward” (doc. 12). Because the plaintiff failed to comply with the court's July and August orders, on September 15, 2021, a report and recommendation was filed recommending that the plaintiff's case be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (doc. 13). After the report and recommendation was issued, on September 24, 2021, the plaintiff submitted a letter to the court indicating that she wished for her case to continue and that she did not receive the court's prior orders (doc. 15). Out of an abundance of caution for the pro se plaintiff, the court vacated it's report and recommendation, and provided the plaintiff with one final opportunity to bring her case into proper form (doc. 16). On October 5, 2021, the plaintiff provided the required documents, and brought the case into proper form for review (docs. 19; 20; 21). Upon review, it appeared that the plaintiff's complaint may not be timely filed, so on October 14, 2021, the undersigned issued an order to show cause instructing the plaintiff to file a factual explanation to show cause why her complaint should not be dismissed based upon the 60-day statute of limitations (doc. 25). More than two weeks after the deadline expired to respond, the plaintiff filed a two-page letter in response to the order (doc. 28).
APPLICABLE LAW AND ANALYSIS
Judicial review of final decisions made by the Commissioner of Social Security on claims arising under Titles II or XVI of the Social Security Act is prescribed in 42 U.S.C. § 405(g), which provides in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which [she] 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 [her] of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g). The regulations further provide that a civil action “must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual . . ., except that this time may be extended by the Appeals Council upon a showing of good cause.” 20 C.F.R. § 422.210(c). The date of receipt of the notice is presumed to be five days after the date of such notice, unless the plaintiff makes a reasonable showing to the contrary. See 20 C.F.R. §§ 404.901,422.210(c), 416.1401. The 60-day statute of limitations, however, is not jurisdictional and is subject to equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 479-80 (1986). Equitable tolling is only appropriate, however, when exceptional circumstances have been demonstrated. See Hyatt v. Heckler, 807 F.2d 376, 378, 380-81 (4th Cir. 1986), cert. denied 484 U.S. 820 (1987). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In the instant matter, the Notice of Appeals Council is dated December 18, 2020 (doc. 1-1). The notice specifically informed the plaintiff of her right to commence a civil action within sixty (60) days from the date of the receipt (which was presumed five days after the date of the notice) (id.). The notice also set out that should the plaintiff need an extension of the deadline, she was required to request it in writing from the Commissioner (id.). Allowing five days for mailing pursuant to the applicable regulations, the plaintiff is presumed to have received the notice on December 23, 2020. The time period within which the plaintiff could file a civil action began on that day and expired 60 days later on February 22, 2021. The plaintiff filed the instant action on July 26, 2021, several months after the expiration of the deadline (doc. 1). However, in her complaint, the plaintiff indicated that she received the decision from the Appeals Council on May 2021 (id. at 3). In response to the court's special interrogatories, the plaintiff also indicated that she did not receive an extension of time to file her request for court review (doc. 20 at 2). As such, the plaintiff's filing appears untimely and subject to dismissal, unless the plaintiff can provide exceptional circumstances necessary to justify equitable tolling. See Hyatt, 807 F.2d at 378 (citing Bowen, 476 U.S. at 481-85); Gibbs v. Barnhart, C/A No. 2:04-cv-0056, 2005 WL 283205, at *2 (W.D. Va. Feb. 7, 2005).
Here, albeit untimely, the plaintiff responded to the order to show cause on November 22, 2021 (doc. 28). The plaintiff's response indicates that she was aware of the 60-day deadline to respond, but she asserts that she was waiting to hear from a lawyer about taking her case (id.). The plaintiff's response also noted, however, that she reached out to the lawyer for an update regarding taking her case because she knew the deadline was approaching (id.). In light of the foregoing, this does not appear to be one of those “rare cases” in which the application of equitable tolling is appropriate. The plaintiff appears to assert that her late filing should be excused because she was waiting to hear from an attorney to see if the attorney would take her case; however, it has been held that an attorney's mistake (i.e. not reviewing the file prior to expiration of the deadline) is not “one of the rare circumstances in which equitable tolling is permissible.” Gibbs, 2005 WL 283205, at *1 (emphasis added and quotation marks omitted) (citing Davila v. Barnhart, 225 F.Supp.2d 337, 339 (S.D.N.Y. 2002)). Indeed, the plaintiff's assertions make it clear that she was aware that she had a limited time to file her civil action in this court, but inexplicably waited an additional five months before filing this action (docs. 1; 28). The circumstances leading to the plaintiff's late filing were not extraordinary; rather, they were entirely within her control and evince a lack of diligence. As the plaintiff's conduct “is at best a garden variety claim of excusable neglect,” she appears ineligible for equitable tolling. See e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Gibbs, 2005 WL 283205, at *2..
RECOMMENDATION
Accordingly, based upon the foregoing, it appears that this case was untimely filed and should be dismissed. The plaintiff was provided with an opportunity to show cause why her case should not be dismissed based upon her untimely filing, but she has not met the burden required to show exceptional circumstances. Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice based upon the statute of limitations.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).