Opinion
Case No. CIV-20-124-SM
08-10-2020
SUSAN M. SMITH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Susan M. Smith (Plaintiff), appearing pro se, brings this action for judicial review of the Commissioner of Social Security's final decision that she was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). She has filed an amended complaint, and asks "the court grant Social Security benefits and/or reverse and remand the Commissioner's final decision for further Administration processing as recommended in the 'MEMORANDUM OPINION AND ORDER' Doc. 39." Doc. 8, at 2. Mindful of Plaintiff's pro se status, the Court will construe her pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But even pro se plaintiffs must comply with the "fundamental requirements of the Federal Rules of Civil and Appellate Procedure" and substantive law. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
Defendant has filed a motion to dismiss, arguing that res judicata bars this action. Doc. 13. Plaintiff responded, suggesting the Commissioner's failure to object to this Court's previous order (denying her appeal of the Commissioner's final decision) precludes his motion. Doc. 16, at 2. She also argues she is entitled to benefits. Id. at 2-3.
Plaintiff's reference to "Doc. 39" in her complaint is a cite to this Court's decision in Smith v. Commissioner, No. CIV-19-300-SM, filed December 26, 2019 (Smith I). The Court entered Judgment the same day. Smith I, Doc. 40. After the Court's order and judgment in Smith I, Plaintiff filed a notice of appeal in the Tenth Circuit, but then sought to withdraw the appeal notice. The Tenth Circuit granted her request. Id. Doc. 45.
"[T]he district court can take judicial notice of its own decision and records in a prior case involving the same parties." Merswin v. Williams Cos., Inc., 364 F. App'x 438, 441 (10th Cir. 2010) (citing Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-62 (10th Cir. 2008)).
The doctrine of res judicata precludes a party from re-litigating issues that were or could have been raised in an earlier action. The party invoking the doctrine has the burden of showing its preclusive effect; specifically Defendant must show: (i) that the court entered a judgment on the merits of the claim in question in a prior suit; (ii) that the parties in both the prior and current suits are identical or in privity; (iii) that the cause of action was identical in both suits; and (iv) that the party to be bound, that is Plaintiff, had a full and fair opportunity to litigate her claims. Phan v. Hipple, 735 F. App'x 492, 494 (10th Cir. 2018).
This Court has issued an order and judgment affirming the Commissioner's final decision in Smith I. The parties in the present action are identical. The cause of action is identical, seeking review of the same Commissioner's final decision. And Plaintiff had the opportunity to fully and fairly litigate and argue her claims regarding the Commissioner's final decision. She filed a complaint, a motion for summary judgment, a brief in support, an additional brief, and a reply brief. The Court considered all of Plaintiff's filings when rendering its decision. Plaintiff then filed a notice of appeal, but then withdrew that notice.
The undersigned agrees with Defendant that res judicata bars this action, and recommends its dismissal under Fed. R. Civ. P. 12(b)(6). Plaintiff may not keep challenging the same Commissioner's final decision. The undersigned also recommends the Court deny Plaintiff's request for "$800.00 reimbursement on filing fees . . . ." Doc. 8, at 2.
Defendant's motion also cites Rule 12(b)(1). The res judicata "doctrine is not jurisdictional but may properly be asserted under Rule 12(b)(6)." Dopp v. Larimer, No. CIV-15-244-D, 2016 WL 4059170, at *1 (W.D. Okla. July 29, 2016) (citing Merswin, 364 F. App'x at 441). --------
Recommendation and notice of right to object.
For the stated reasons, the undersigned recommends the Court dismiss this action under Fed. R. Civ. P. 12(b)(6) and deny Plaintiff's request for fees. Docs. 13, 8.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court on or before August 24, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
ENTERED this 10th day of August, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE