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Slabon v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

June 15, 2017

NANCY A. BERRYHILL, Acting Commissioner Social Security Administration, [1]Defendant.

          Judge Sharon Johnson Coleman


          SHARON JOHNSON COLEMAN United States District Judge.

         Plaintiff Andrew Slabon filed a pro se three-count Amended Complaint, alleging the defendant Commissioner of the Social Security Administration (the “Commissioner”) violated Slabon's due process and equal protection rights, and intentionally caused him emotional distress. The Commissioner moves to dismiss [20] the Amended Complaint in its entirety with prejudice for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b). For the reasons stated herein, the Court grants the motion in part and converts the motion in part to a motion for summary judgment.


         Andrew Slabon began receiving Supplemental Security Income (“SSI”) benefits in November 2009 after the Social Security Administration found he met the medical and non-medical criteria for receiving SSI.[2] Slabon was arrested and taken into custody in January 2014. He was convicted at trial of aggravated battery and was incarcerated in the Illinois Department of Corrections until his release in February 2016. During his incarceration the Commissioner suspended and then terminated Slabon's SSI benefits.

         Defendants have submitted exhibits indicating that Slabon contacted the SSA about filing a new SSI application on February 29, 2016, the Monday following his release from prison.[3] (Dkt. 21, Ex. E). On March 8, 2016, Slabon filed a new application for SSI benefits. (Id. at Ex. F). The Commissioner denied the application both initially and on reconsideration. (Id. at Ex. G, H). Slabon requested a hearing before an Administrative Law Judge, which was scheduled for May 19, 2017. (Id. at Ex. I, J).

         Legal Standard

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual allegations to state a claim for relief that is plausible on its face, Ashcroft v. Iqbal, 556 U.S. 62, 678 (2009), and raises the right to relief above a speculative level, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When reviewing a motion to dismiss, the court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Pisciota v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). A plaintiff can plead himself out of court by alleging facts that defeat the claim. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

         Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for subject matter jurisdiction. The Court may look beyond the jurisdictional allegations in the complaint and consider any evidence submitted on the issue to determine whether jurisdiction exists. E.g., Farnik v. F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013) (citing Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003)).


         As an initial matter, this Court notes that Slabon does not dispute that he cannot bring the instant complaint as a class action in the manner it is set forth. (Dkt. 25 at 3). Accordingly, this Court considers the Amended Complaint only as a pleading on behalf of Slabon as an individual plaintiff.

         The Commissioner moves to dismiss the claims as they relate to Slabon's 2016 post-incarceration application for lack of jurisdiction because that application remains pending in the agency. The Amended Complaint includes allegations that Slabon has reapplied for SSI and has been twice denied. (Dkt. 18 at ¶¶ 13-14). For this Court to have jurisdiction over a challenge to the denial of SSI benefits there must be a final agency decision. 42 U.S.C. §405(g). “On its face s 405(g) thus bars judicial review of any denial of a claim of disability benefits until after a ‘final decision' by the Secretary after a ‘hearing.'” Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). It is undisputed that a hearing was scheduled to take place on May 19, 2017, on Slabon's 2016 application for SSI. As of entry of this Order, this Court has not received notice from either party of a final agency decision. Accordingly, this Court lacks jurisdiction over any claims arising from the 2016 application.

         The Commissioner also moves to dismiss Count III of the Amended Complaint, which alleges intentional infliction of emotional distress under Illinois law, for lack of subject matter jurisdiction. The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, is the exclusive avenue to pursue tort claims against the government and its agencies. The FTCA contains an explicit exception to waiver of sovereign immunity (i.e., consent to be sued) for intentional torts, such as intentional infliction of emotional distress. 28 U.S.C. §2680(h). Even if the Commissioner had consented to be sued under the FTCA for intentional infliction of emotional distress, this Court must still dismiss Count III because Slabon never presented this claim to the SSA. See 28 U.S.C. §2675(a) (a claimant must have presented the tort claim to the agency and received a final decision as a prerequisite to suit against the agency). Accordingly, this Court dismisses Count III.

         Next, the Commissioner moves to dismiss Count II of the Amended Complaint, alleging that suspension and termination of SSI benefits following 12 consecutive months of suspension based on incarceration violates equal protection. For legislation to pass constitutional muster under an equal protection analysis, the Supreme Court requires that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives. Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080-81, 67 L.Ed.2d 186 (1981) (citing e. g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976)). Slabon appears to ...

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