Santiago v. Commissioner of Social Security
| Luis Santiago |
| Commissioner of Social Security |
| Social Security Administration |
| 3:2023cv00097 |
| January 25, 2023 |
| US District Court for the District of Connecticut |
| Maria E Garcia |
| Michael P Shea |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 405 Review of HHS Decision (SSID) |
| None |
Docket Report
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| JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link: https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Johnson, D.) |
| Filing 13 JUDGMENT filed and entered dismissing the case.For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms/all-forms/appeals_forms Signed by Clerk on 3/10/23.(Johnson, D.) |
Filing 12
ORDER: I have reviewed Magistrate Judge Garcia's Recommended Ruling 11 to which no objection has been timely filed. Having done so, I accept and adopt the Ruling, including her recommendation that the case be DISMISSED. It is so ordered. The Clerk is directed to close this case. Signed by Chief Judge Michael P. Shea on 03/10/2023.(Housman, L)
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Filing 11
RECOMMENDED RULING recommending dismissal pursuant to 28 U.S.C. 1915(e)(2)(B).On January 27, 2023, the Court entered an Order to Show Cause noting that the complaint in this case was not timely filed, and ordering Plaintiff "to show cause why Plaintiff's complaint should not be dismissed as untimely" by Monday, February 17, 2023. ECF No. 9. Plaintiff has failed to respond to that Order.When a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. 1915(e)(2)(B).A plaintiff must file an action in District Court within 65 days of the date of the Appeals Council's decision. See 42 U.S.C. 405(g); 20 C.F.R. 404.1703; 20 C.F.R. 416.1503.While the 65-day requirement is not jurisdictional, it is a statute of limitations, and "it is a condition on the waiver of sovereign immunity and thus must be strictly construed." Bowen v. City of New York, 476 U.S. 467, 47879 (1986). "Failure to file a complaint within the statutory limitation most often requires dismissal of the case, even where the delay is minor...." Borrero v. Colvin, No. 14CV5304-LTS-SN, 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19, 2015) (referring to time limitation within 42 U.S.C. 405(g))."Dismissal is... appropriate where the existence of... [a] statute of limitations [defense]... is plain from the plaintiff's pleading." Pratts v. Coombe, 59 F. App'x 392, 393 (2d Cir. 2003) (summary order); see Syfert v. City of Rome, No. 6-19- CV-0775 (GTS/ML), 2020 WL 4506689, at *4 (N.D.N.Y. Apr. 15, 2020), report and recommendation adopted, No. 6:19-CV-0775 (GTS/ML), 2020 WL 4500893 (N.D.N.Y. Aug. 05, 2020) ("Although the statute of limitations is an affirmative defense, where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim on 28 U.S.C. 1915(e)(2)(B) review.") (citing Pino v. Ryan, 49 F.3d 51, 5354 (2d Cir. 1995)); Kimberly W. v. Saul, No. 3:21-CV-00042 (TOF), 2021 WL 880110 (D. Conn. Mar. 9, 2021) (untimely complaint under 42 U.S.C. 405(g) dismissed for failure to state a claim on 28 U.S.C. 1915(e)(2)(B) review after plaintiff failed to respond to order to show cause why plaintiff's complaint should not be dismissed as untimely).On the face of the Complaint, Plaintiff's action is untimely. Plaintiff filed his complaint in this action on January 25, 2023, 159 days after the Appeals Council denied review of the ALJ's decision on August 19, 2022. Plaintiff has not alleged he requested an extension from the Appeals Council within the 60-day time limit.The 65-day limitations period can be subject to equitable tolling. See Cole-Hill ex rel. T.W. v. Colvin, 110 F. Supp. 3d 480, 484 (W.D.N.Y. 2015). However, Plaintiff has failed respond to the Court's order to show cause and has failed to provide any explanation for filing an untimely complaint. Therefore, this Court recommends that this case be dismissed. This is a recommended ruling by a magistrate judge. Fed. R. Civ. P. 72(b)(1); D. Conn. L. Civ. R. 72.1(C). If Plaintiff wishes to object to my recommendation, he must file that objection with the Clerk of the Court by March 9, 2023. See Fed. R. Civ. P. 72(b)(2) (objections to magistrate judge recommendations to be filed within fourteen days); D. Conn. L. Civ. R. 72.2(a) (allowing five additional days, as computed by Fed. R. Civ. P. 6, for persons who receive the recommendation from the Clerk of the Court via mail). If he does not do so, he may not thereafter assign as error any claimed defect in this recommended ruling. Id. Failure to file a timely objection will also preclude appellate review. See 28 U.S.C. 636(b)(1); Small v. Sec'y of Health & Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision."); accord Impala v. United States Dep't of Just., 670 F. App'x 32 (2d Cir. 2016) (summary order). Signed by Judge Maria E. Garcia on 2/23/23. (Lefevre, Arthur)
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Filing 10
ORDER granting #2 Motion for Leave to Proceed in forma pauperis. The plaintiff has filed a motion seeking to proceed without payment of fees and costs, along with a financial affidavit. The plaintiff has fully completed the required information. He asserts that he is unable to afford to pay fees and costs. At this stage, such allegations are sufficient to establish that the plaintiff is unable to pay the ordinary filing fees required by the Court. 28 U.S.C. 1915(a)(1). Accordingly, the plaintiff's Motion for Leave to Proceed in forma pauperis is GRANTED. Signed by Judge Maria E. Garcia on 2/23/23. (Lefevre, Arthur)
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Filing 9
ORDER TO SHOW CAUSE why Plaintiff's complaint should not be dismissed as untimely. Plaintiff has filed a complaint seeking review of a final decision of the Commissioner of Social Security. Plaintiff filed the complaint January 25, 2023.A plaintiff must file any civil action seeking review of a final decision of the Commissioner within 60 days "after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow." 42 U.S.C. 405(g). A plaintiff is assumed to receive notice five days after the notice date. See 20 C.F.R. 404.1703; 20 C.F.R. 416.1503. In sum, a plaintiff must file an action in District Court within 65 days of the date of the Appeals Council's decision. Plaintiff alleges that the Appeals Council denied his request for review on August 19, 2022. See ECF No. 1, at 2. Any appeal to this Court was required to be filed within 65 days of that date, that is, on or before October 24, 2022. Plaintiff's complaint was filed on January 25, 2023, three months after that deadline. Accordingly, it appears that Plaintiff's complaint was not timely filed. Plaintiff is hereby ORDERED to show cause why the Court should not dismiss the complaint as untimely. Plaintiff shall file a response to this Order on or before February 17, 2023. Plaintiff should attach a copy of the notice he received from the Appeals Council to his response. Failure to respond to this Order may result in dismissal of this action. It is so ordered. Signed by Judge Maria E. Garcia on 1/27/23. (Lefevre, Arthur)
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| Filing 3 NOTICE of Appearance by Sixtina Fernandez on behalf of Commissioner of Social Security (Fernandez, Sixtina) |
| Filing 8 Notice of New SSA Action: Electronic service of the complaint was made by the Clerk's Office upon the Social Security Office of General Counsel and the US Attorney's Office for the District of Connecticut. (Peterson, M) |
| Filing 7 Notice to Self-represented Parties Signed by Clerk on 1/25/2023. (Peterson, M) |
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Filing 6
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 1/25/2023. (Peterson, M)
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Filing 5
Standing Order Re: Social Security Cases Signed by Judge Michael P. Shea on 1/25/2023. (Peterson, M)
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Filing 4
Standing Order on Social Security Appeals Signed by Judge Michael P. Shea on 1/25/2023. (Attachments: #1 Consent Form) (Peterson, M)
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| Answer deadline updated for Commissioner of Social Security to 3/26/2023. (Peterson, M) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Luis Santiago. (Chartier, AnnMarie) |
| Filing 1 COMPLAINT against Commissioner of Social Security, filed by Luis Santiago. (Attachments: #1 Envelope)(Chartier, AnnMarie) |
| Judge Michael P. Shea and Judge Maria E. Garcia added. Motions referred to Maria E. Garcia (Oliver, T.) |
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