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Richter v. U.S. Social Security Administration

United States District Court, D. Nebraska

September 25, 2017

RUTH RICHTER, Plaintiff,
v.
U.S. SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis (Filing No. 5). After initial review of Plaintiff's Complaint, the court ordered Plaintiff to file an amended complaint. (Filing No. 9.) Plaintiff has now filed an Amended Complaint (Filing No. 11) and Supplement (Filing No. 12) in which Plaintiff alleges that she seeks declaratory and injunctive relief against the defendant under 5 U.S.C. § 702 of the Administrative Procedure Act for “not getting an ALJ hearing until 17 years later after . . . appeal filed” and “leaving an aging disabled citizen with no SSI benefits to which Plaintiff was entitled” during those 17 years, thereby depriving her of “full due process” and her First Amendment “right to be heard.” (Filing No. 11 at CM/ECF pp. 3-4, 6.) While not completely clear, it appears Plaintiff is alleging that it took 17 years for the Social Security Administration to issue a decision in her favor regarding her entitlement to SSI benefits, and that decision was issued without a hearing, without the presence of Plaintiff and her lawyer, and without the presentation of witnesses in Plaintiff's favor. (Filing No. 11 at CM/ECF p. 6.)

         While Plaintiff in one part of her Amended Complaint expressly denies that she is challenging “the SSI/overpayment matter, ” she repeatedly states that she wishes to “recoup her own SSI entitled payments that were wrongly withheld” and that she “should get her benefits back . . . from 1999 when she was cut off and an appeal was filed shortly thereafter.” (Filing No. 11 at CM/ECF pp. 3-4.) She specifically asks the court “to review the ALJ['s] fully favorable to me decision of June 7, 2017.” (Id. at p. 5.) The court previously advised Plaintiff that without alleging that she has exhausted her administrative remedies, this court lacks jurisdiction over any claim that the Social Security Administration wrongly discontinued her SSI benefits. (Filing No. 9 at CM/ECF p. 3.) Plaintiff's Amended Complaint and Supplement do not contain any final decision from an ALJ or the Appeals Council. Thus, to the extent Plaintiff makes such a claim, this court does not have jurisdiction over a claim that the SSA wrongly discontinued Plaintiff's SSI benefits, and such claim shall be dismissed.[1]Grisso v. Apfel, 219 F.3d 791, 793 (8th Cir. 2000) (“To the extent [the plaintiff's] mandamus petition sought reimbursement of benefits, we agree with the district court that it lacked jurisdiction to review such a claim absent exhaustion of administrative remedies.”); Robinson v. Sec'y of Health & Human Servs., No. 89-1199, 1989 WL 109432, at *1 (6th Cir. Sept. 22, 1989) (affirming dismissal of claim for compensatory and punitive damages for deprivations allegedly suffered after Social Security benefits were wrongfully terminated because the claim “was not a review of an agency decision, [and] the court lacked jurisdiction under [42 U.S.C.] § 405(g)” to entertain it); Armstrong v. Astrue, 569 F.Supp.2d 888, 898 (D. Minn. 2008) (dismissing claim challenging amount of monthly SSA benefits when plaintiff failed to submit final decision from ALJ or Appeals Council for federal district court's review).

         Finally, contrary to the court's prior order that Plaintiff file an amended complaint that alleges facts “showing that Plaintiff is entitled to relief under particular sections of the Civil Rights Act of 1964 and the Americans With Disabilities Act” (Filing No. 9 at CM/ECF p. 8), Plaintiff's Amended Complaint simply refers to those acts without further illumination. Hence, these claims shall be dismissed.

         Out of an abundance of caution, and because the court has not been presented with Plaintiff's relevant social security records, I shall allow this matter to go forward on Plaintiff's claim for declaratory and injunctive relief under 5 U.S.C. § 702 of the Administrative Procedure Act for the defendant's alleged violation of her First and Fifth (due process) Amendment rights when she was forced to live for 17 years without SSI benefits while the Social Security Administration allegedly delayed taking action on her appeal.[2]

         Accordingly, IT IS ORDERED:

         1. Plaintiff's claim for declaratory and injunctive relief under 5 U.S.C. § 702 of the Administrative Procedure Act for the defendant's alleged violation of her First and Fifth (due process) Amendment rights when she was forced to live for 17 years without SSI benefits while the Social Security Administration allegedly delayed taking action on her appeal shall proceed.

         2. To the extent Plaintiff asserts a claim that the Social Security Administration wrongly discontinued Plaintiff's SSI benefits, such claim is dismissed for Plaintiff's failure to exhaust administrative remedies. In addition, Plaintiff's purported claims under the Civil Rights Act of 1964 and the Americans With Disabilities Act are dismissed without prejudice.

         3. The Clerk of the Court shall send THREE summons forms and THREE USM-285 forms to Plaintiff for service of process on the United States. Federal Rule of Civil Procedure 4(m) requires service of process by no later than 90 days after the filing of a civil complaint. However, Plaintiff is granted, on the court's own motion, an extension of time until 90 days from the date of this order to complete service of process.

         4. Plaintiff shall, as soon as possible, complete the forms (see attached Notice for persons to be served) and send the completed summonses and USM-285 forms back to the Clerk of the Court. In the absence of those forms, service of process cannot occur.

         5. Upon receipt of the completed summons forms and USM-285 forms, the Clerk shall sign the summonses and forward them, together with copies of the Complaint, Amended Complaint, and Supplement (Filing Nos. 1, 11, 12), to the U.S. Marshal for service on the United States.

         6. The Marshal shall serve the United States without payment of costs or fees. Service shall be effected pursuant to Federal Rule of Civil Procedure 4(i) regarding “[s]erving the United States and Its Agencies, Corporations, Officers, or Employees.” DATED this 25th day of September, 2017.

         Notice regarding Federal Rule of Civil Procedure 4(i)

         Federal Rule of Civil Procedure 4(i) regarding “[s]erving the United States and Its Agencies, Corporations, ...


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