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CARTER v. SOCIAL SECURITY FIELD OFFICE

March 19, 2004.

EMANUEL CARTER, Plaintiff,
v.
SOCIAL SECURITY FIELD OFFICE, JOANN BARNHART, Social Security Commissioner,[fn1] Defendants



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

*fn1 Plaintiffs original complaint was brought against the Social Security Field Office and several individual employees of the office. In his amended complaint, Plaintiff sues the Social Security Field Office and JoAnn Barnhart, the Commissioner of the Social Security Administration.

MEMORANDUM OPINION AND ORDER

This action to recover Social Security benefits is before the Court on Defendants' motion to dismiss the pro se complaint of Plaintiff Emanuel Carter, which alleges a number of wrongful acts committed by a Social Security Field Office. For the reasons set forth below, Defendants' motion to dismiss [doc. no. 12-1] is granted, Page 2

  BACKGROUND

  The following facts are alleged in Plaintiffs original and amended complaints,*fn2 which must be presumed to be true for the purposes of this motion to dismiss. See Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 502 (7th Cir. 1998). Plaintiff alleges that personnel in the Social Security Field Office ("Field Office") at 5130 W. North Avenue, Chicago, Illinois, did not care enough to do their jobs and did not use necessary equipment, such as computers, to confirm they were processing his claim properly. (Compl, at 1-2.)*fn3 Plaintiff further claims that the Field Office tried to make Plaintiff sign up for early retirement, tried to make him fill out a Form SSA632BK against his will, lied to him on a number of occasions, and made it difficult for him to sign up for a senior pension at the Field Office as well as at three other offices. (Id. at 3-4; Am. Compl. at 4.) Plaintiff also states that the government lied and falsified a bill in the amount of $70,287.90 in order to induce him to sign papers that would cover up its alleged crimes against him. (Id. at 3.)

  In addition, Plaintiff alleges that the Field Office stole his Social Security number to make up a phony number and codes in order to "hack" into his name as well as his disability and health insurance. (Am. Compl. at 1-3.) Plaintiff states that the Field Office embezzled money from Social Page 3 Security, forged checks in his name, falsely accused him of crimes, and extorted him by setting up a payment plan to take back money from him. (Id. at 3.) Plaintiff also contends that he was put on SSI, which he claims constitutes kidnaping, and that the Field Office held him hostage from his money to cover up its crimes. (Id. at 4.) Plaintiff seeks damages in the amount of $150,000 for Social Security benefits as well as for pain and suffering. (Compl. at 5; Am. Compl. at 4.)

  DISCUSSION

  Defendants' motion to dismiss argues that the complaint should be dismissed because (1) Plaintiff has failed to establish this Court's jurisdiction or waiver of the United States' sovereign immunity; (2) Plaintiff has failed to exhaust his administrative remedies with the Social Security Administration ("SSA") regarding his benefits; and (3) Plaintiffs tort claims are barred by the Federal Tort Claims Act. Plaintiff did not respond to the motion.

  In deciding this motion to dismiss,*fn4 the Court must presume the truth of all of Plaintiff's well pleaded allegations. See Janowsky v. United States, 913 F.2d 393, 395 (7th Cir. 1990), A motion to dismiss under subsection of Federal Rule of Civil Procedure 12(b) may be granted only if it Page 4 appears that Plaintiff can prove no set of facts entitling him to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Barnhardt v. United States, 884 F.2d 285, 296 (7th Cir. 1989). Moreover, courts must construe pro se pleadings liberally. Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998). Nevertheless, a complaint must give the defendant fair notice of the nature of the action, and even under liberal pleading standards, a complaint may be dismissed if it fails to include the operative facts upon which the claims are based. See Kite v. Morton High Sch., 144 F.3d 448, 456-57 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

 Social Security Act

  Defendants first argue that Plaintiffs complaint should be dismissed because it does not allege waiver of sovereign immunity under the Social Security Act. Specifically, Defendants state that because Plaintiff has not exhausted his administrative remedies, his claim is not ripe for judicial review.

  The defendant SSA is a federal agency, so this case must be considered a suit against the United States for the purposes of sovereign immunity. Biase v. Kaplan, 852 F. Supp. 268, 277 (D.NJ. 1994). Under the doctrine of sovereign immunity, "the United States may not be sued without its consent and . . . the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). Absent a clearly expressed waiver, sovereign immunity is a jurisdictional bar to suit against the United States. Russell v. United States Dep't of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999). A plaintiff's failure to plead "a federal law that waives the sovereign immunity of the United States to the cause of action . . . mandates the dismissal of the plaintiffs claim." Macklin v. United States, 300 F.3d 814, 819 (7th Cir. 2002). Page 5

  Neither the original nor the amended complaint expressly alleges that the government has waived its sovereign immunity in this case. However, given that this is a pro se complaint, the Court will analyze it liberally to determine whether it contains any allegations that may indicate jurisdiction is proper.

  In an action to recover Social Security benefits, the issue of waiver of sovereign immunity is governed by statute. Judicial review of SSA determinations may occur only "after any final decision of the Commissioner of Social Security made after a hearing to which he was a party." 42 U.S.C. ยง 405(g); see also Jimenez v. Weinberger, 523 F.2d 689, 702 (7th Cir. 1975) ("[Section] 405(g) . . . operates as a waiver of sovereign immunity. . . ."). The Commissioner's "final decision" includes two separate elements: (1) "a nonwaivable requirement that a claim for benefits be presented to the Secretary"; and (2) "a waivable requirement of exhaustion of administrative remedies." Suite v. Schweiker, 730 F.2d 1069, 1070-71 (7th Cir. 1984) (citing Mathews v. Eldridge, 424 U.S. 319, 328 ...


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