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Heinemann v. Social Security Administration

United States District Court, D. Maine

October 14, 2016

THEODORE HEINEMANN, Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION, et al., Defendants

          RECOMMENDED DECISION AFTER SCREENING PLAINTIFF'S COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E).

          John C. Nivison U.S. Magistrate Judge.

         On September 9, 2016, a day after he visited the Social Security Administration's office in the Margaret Chase Smith Federal Building in Bangor, Maine, Plaintiff filed this action in which he alleges that he was assaulted by “a social security administration guard”; that the Social Security Administration (SSA) has engaged in “intentional mismanagement” in part because it refused his request for production of records related to his deceased father's social security account; and that Joan Logan Bowen (Plaintiff's mother) and her husband, Stephen Bowen, are working with the SSA to violate the law. On September 22 and 23, Plaintiff filed supplemental pleadings, in which pleadings Plaintiff contends Joan Bowen should be arrested for social security fraud, and that the SSA is wrongfully making him repay an overpayment of social security benefits rather than recovering the overpayment from Joan Bowen.

         Plaintiff filed an application to proceed in forma pauperis, which application the Court granted. (ECF Nos. 3, 4). In accordance with the in forma pauperis statute, a preliminary review of Plaintiff's complaint is appropriate. 28 U.S.C. § 1915(e)(2). Following a review of the pleadings, I recommend the Court dismiss Plaintiff's claims except for Plaintiff's challenge to the SSA's decision to collect an overpayment of benefits from Plaintiff.

         Standard of Review

         Before the Court can consider the merits of Plaintiff's claims, the Court must have subject matter jurisdiction to hear the case. Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also Florio v. Olson, 129 F.3d 678, 680 (1st Cir. 1997) (providing that a court has “an obligation to inquire sua sponte into the subject matter jurisdiction of its cases, and to proceed no further if such jurisdiction is lacking” (internal citations and quotations omitted).)

         In addition to the primary concern over jurisdiction, when a party is proceeding in forma pauperis, “the court shall dismiss the case at any time if the court determines, ” inter alia, that the action is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). “Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         When considering whether a complaint states a claim for which relief may be granted, courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The relevant question ... in assessing plausibility is not whether the complaint makes any particular factual allegations but, rather, whether ‘the complaint warrant[s] dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible.'” Rodríguez- Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14).

         Although a pro se plaintiff's complaint is subject to “less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not consist entirely of “conclusory allegations.” Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro se plaintiffs “is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim”).

         Discussion

         In his original complaint (ECF No. 1), Plaintiff evidently asserts three claims: (1) an assault claim against a SSA security officer and the SSA; (2) an “intentional mismanagement” claim against the SSA, including an allegation that Joan and Stephen Bowen are complicit in the mismanagement; and (3) a claim to obtain records from the SSA. In a supplemental pleading (ECF No. 5), Plaintiff requests that Joan Bowen be charged criminally with social security fraud. In another supplemental pleading (ECF No. 7), Plaintiff apparently requests that the SSA be directed to recover a social security overpayment from Joan Bowen rather than from his future benefits.

         A. The assault claim

         Plaintiff alleges that “a social security administration guard, who was working at 202 Harlow St., Bangor, Maine social security office, assaulted [him] by slamming [him] into the wall of the social security office.” (Complaint at 1, Claim 1, ECF No. 1.) Although Plaintiff is unable to identify the guard, Plaintiff's allegations would be sufficient to state a common law civil tort claim of assault, which tort is actionable based on allegations of offensive physical contact. Donald N. Zillman, Jack H. Simmons & David D. Gregory, Maine Tort Law § 1.01 (2004). Additionally, while Plaintiff arguably did not assert a claim against the SSA based on the assault, under state law, an employer can be vicariously liable for the acts of an employee. DiCentes v. Michaud, 1998 ME 227, ¶ 11, 719 A.2d 509, 513.

         Accepting as true for purposes of this preliminary review Plaintiff's assertion that the individual who allegedly assaulted him was a “social security administration guard, ”[1] Plaintiff's claim would be subject to the Federal Tort Claims Act. “It is well settled law, that an action brought against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., ([the FTCA]) must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency.” Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990) (citing United States v. Kubrick, 444 U.S. 111, 113 (1979)). The FTCA's presentment requirement is jurisdictional. 28 U.S.C. § 2675; Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991).

         Plaintiff has not asserted, nor has he filed any document that reflects, that he has presented his assault claim to the SSA prior to filing suit. To the contrary, according to Plaintiff's allegations, he filed this action immediately after the alleged incident involving the guard. While the FTCA might waive the sovereign immunity of the United States with respect to an assault claim against a federal “law enforcement officer, ” see 28 U.S.C. §§ 1346(b), 2680(h), the waiver is contingent upon compliance with the FTCA, which requires Plaintiff first present his claim to the appropriate federal agency. Id. § 2675. Plaintiff's failure to present the case first to the appropriate agency deprives this Court of jurisdiction at this time. Corte-Real, 949 F.2d at 485.

         B. Claim of “intentional mismanagement”

         Plaintiff appears to assert a claim of “intentional mismanagement” against the SAA, Joan Bowen, and Stephen Bowen, based on their alleged communications with the SSA regarding Plaintiff's benefits. In his supplemental filing (ECF No. 5), Plaintiff submits documents which suggest that he was required to attend a medical evaluation on September 27 to assess whether he continues to suffer a disability.

         The factual bases for and the legal theory in support of Plaintiff's “intentional mismanagement” claim are not entirely clear. Plaintiff evidently believes that his disability status is being reviewed due in part to communications made by the Bowens. Plaintiff's allegations, however, reflect that he continues to receive social security benefits, which include payments made to him based on his disability, and as a beneficiary of his father's social security account. Arguably, Plaintiff is attempting to enjoin, or prevent, the SSA from reviewing his entitlement to disability benefits.

         The Social Security Act and applicable federal regulations permit periodic review of disability cases. 42 U.S.C. § 421(i); 42 C.F.R. §§ 404.1589, 416.989. Moreover, the Social Security Act provides that “[n]o action against the United States, the [Secretary], or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.” 42 U.S.C. § 405(h) (emphasis added). The Supreme Court has determined that this provision “clearly appl[ies] in a typical Social Security or Medicare benefits case, where an individual seeks a monetary benefit from the agency (say, a disability payment, or payment for some medical procedure), the agency denies the benefit, and the individual challenges the lawfulness of that denial.” Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000). “The statute plainly bars § 1331 review …, irrespective of whether the individual challenges the agency's denial on evidentiary, rule-related, statutory, constitutional, or other legal grounds.” Id.

         Even apart from the bar imposed by § 405(h), ordinary administrative law principles militate against judicial intervention in a legislatively-authorized agency process where, as here, the claim is not ripe because benefit payments have not been discontinued and the administrative process could moot any concern Plaintiff has about the possible discontinuation of his benefits. Id. at 12 - 13. See also Mathews v. Eldridge, 424 U.S. 319, 329 (1976) (holding that “some decision by the Secretary” is a jurisdictional prerequisite to judicial review under the Social Security Act”)[2]; FTC v. Std. Oil Co. of Cal., 449 U.S. 232 (1980) (holding that an agency's issuance of a complaint against a party is not reviewable in court until there is an administrative adjudication).

         In short, at the present time, the Court lacks or should not exercise jurisdiction to intervene in what Plaintiff has alleged to be an SSA review process.

         C. Claim for production of records

         According to Plaintiff's complaint, on September 8, while at the SSA office, Plaintiff requested the production of his deceased father's social security records. The local SSA office did not produce the records. Plaintiff evidently attempts to assert a claim under the Freedom of Information Act (FOIA).[3]

         FOIA affords agencies 20 days to respond to a proper request for records. 5 U.S.C. § 552(a)(6)(A). If an agency fails to respond within 20 days, “the ‘penalty' is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n,711 F.3d 180, 189 (D.C. Cir. 2013). SSA regulations, however, do not require the SSA to make the social security records ...


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