United States District Court, N.D. Illinois, Eastern Division
Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge.
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  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.
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. 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.
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. (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).
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
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.
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.
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
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.
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 ...