Hines v. Astrue

876 F. Supp. 2d 1001, 2012 WL 2892236, 2012 U.S. Dist. LEXIS 21015

• Court: District Court, S.D. Ohio
• Decided: February 21, 2012
• Docket: Case No. 3:11-cv-409
• Status: Published

Opinion

ENTRY AND ORDER OVERRULING HINES’ OBJECTIONS (Doc. #11) AND SUPPLEMENTAL OBJECTIONS (Doc. # 15) TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS; ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS (Doc. # 7) IN ITS ENTIRETY; DISMISSING HINES’ COMPLAINT AND TERMINATING THIS CASE

THOMAS M. ROSE, District Judge.

Plaintiff Ronita Hines (“Hines”) brought this action pro se in the Court of Commons Pleas of Montgomery County, Ohio. This action was subsequently removed to this Court by the Defendant Commissioner of Social Security (the “Commissioner”). Following removal, the Commissioner filed a Motion To Dismiss for Lack of Jurisdiction. (Doc. # 3.) The Report and Recommendations filed by Magistrate Judge Michael J. Newman on January 12, 2012 recommends that Hines’ Complaint be dismissed for lack of prosecution and because Hines apparently has not exhausted her administrative remedies.¹

Hines has filed Objections (doc. # 11) and Supplemental Objections (doc. # 15) to the Report and Recommendations. The time has run and Commissioner has not responded to Hines’ Objections or Supplemental Objections. This matter is, therefore, ripe for decision.

As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Based upon the reasoning and citations of authority set forth in the Magistrate Judge’s Report and Recommendations (doc. # 7) and in Hines Objections (doc. # 11) and Supplemental Objections (doc. # 15), as well as upon a thorough de novo review of this Court’s file and a thorough review of the applicable law, this Court adopts the aforesaid Report and Recommendations in its entirety and, in so doing dismisses Hines’ Complaint.

WHEREFORE, Hines’ Objections and Supplemental Objections to the Magistrate Judge’s Report and Recommendations are OVERRULED, and this Court adopts the Report and Recommendations of the United States Magistrate Judge (doc. # 7) in its entirety. Hines’ Complaint is dismissed. Finally, the captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

REPORT AND RECOMMENDATION AND NOTICE REGARDING OBJECTIONS

MICHAEL J. NEWMAN, United States Magistrate Judge.

This matter was filed pro se in the Montgomery County Common Pleas Court, and removed to this Court by Defendant, the Commissioner of Social Security, under 28 U.S.C. §§ 1442 and 1446. Following removal, the Commissioner filed a motion to dismiss on November 23, 2011. See doc. 3. Plaintiff was to file a memorandum in opposition to the motion no later than December 19, 2011. None was filed. Accordingly, the Court ordered pro se Plaintiff to show cause, on or before January 5, 2012, why the motion “should not be granted and this case dismissed as requested in the Commissioner’s motion.” Doc. 4 at 1. To ensure that Plaintiff received notice of the Show Cause Order, the Court directed that the Order be mailed to Plaintiff via both regular and certified mail. Id.

I.

The January 5th deadline has passed, and pro se Plaintiff has not filed any document in response to the Commissioner’s motion to dismiss. Nor has she filed anything in response to the Court’s Show Cause Order. (The mail sent to her, by the Clerk, has been returned to the Court as “undeliverable.”) Given Plaintiffs failure to respond to the Show Cause Order (as well as her failure to file a memorandum in opposition to the pending motion to dismiss), this case merits dismissal on account of Plaintiffs lack of prosecution. Accord Jourdan v. Jabe, 951 F.2d 108,109-10 (6th Cir.1991).

II.

The case also merits dismissal on additional grounds. As a preliminary matter, the Court notes sua sponte that Plaintiff has failed to plead her claims with sufficient particularity, i.e., the Court cannot tell precisely what claims Plaintiff is trying to plead and the underlying facts giving rise to those claims. Plaintiffs pro se complaint reads in its entirety as follows:

I[,] Ronita Hines, [ ]am filing [this] complaint to the Defendant []United States of America Social Security Office for public accommodation, not rendering service, discrimination against my disease [-] my mental illness, serious health condition, developmental handicap [-] learning problem, pain, suffering. On June, between 2-10 of 2011[,] Ms. Long[,] manager at United States of America Social Security Administration Building in Columbus, Ohio[,] sent Ronita Hines written documents [ ]that none of my conditions enables me to work, I was denied, that what was told, about all [of] my conditions that can’t be cure[d], that I was born with 2 conditions, that I will die with.

Doc. 1-1 (State Court Complaint) at 4 (brackets added; capitalization deleted).

Construing this pleading in pro se Plaintiffs favor, as required by Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it appears she complains (1) about the denial of Social Security disability benefits; (2) discrimination by the Social Security agency (presumably as a result of the decision not to award her benefits); and (3) that this denial, or some other unspecified conduct by the Agency, constitutes discrimination and/or a failure to provide her with a public accommodation. Plaintiff has failed to set out the material elements to maintain any discrimination or public accommodation claims. Therefore, the Court finds that Plaintiffs claims fail to satisfy the pleading requirements of Fed.R.Civ.P. 8(a) and merit dismissal pursuant to Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir.1988).

III.

Plaintiffs Social Security claim also merits dismissal for the reasons stated by the Commissioner in its motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). See doc. 3.

Absent an unequivocal waiver of sovereign immunity and consent to be sued, a court does not have jurisdiction over any claims made against the United States and its agencies. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). In 42 U.S.C. § 405(g), Congress consented to being sued in Social Security cases exclusively in federal district courts. Accordingly, the state court lacked subject matter jurisdiction over Plaintiffs Social Security appeal.

Under the derivative jurisdiction doctrine,¹ because the state court (where the action was initially filed) did not have subject matter jurisdiction over Plaintiffs claim, this Court also lacks subject matter jurisdiction upon a 28 U.S.C. § 1442 removal. Accord Graber v. Astrue, No. 2:07-cv1254, 2009 WL 728564, at *1-4 (S.D.Ohio Mar. 17, 2009); Ohio v. Smith, No. 2:06-cv-1022, 2007 WL 1114252, at *1-2 (S.D.Ohio Apr. 12, 2007); Smith v. Cromer, 159 F.3d 875, 879 (4th Cir.1998); Elko Cnty. Grand Jury v. Siminoe, 109 F.3d 554, 555 (9th Cir.1997).

Alternatively, even if Plaintiff had properly filed her complaint in this Court, her Social Security claim would still be subject to dismissal because, as is made clear in the motion to dismiss, she failed to present any evidence that she exhausted her administrative remedies.² Section 405(g) only authorizes judicial review of the “final decision of the Commissioner.” See 42 U.S.C. § 405(g). Without a “final decision,” the Court does not have subject matter jurisdiction to review Plaintiffs Social Security appeal. See Willis v. Sullivan, 931 F.2d 390, 397 (6th Cir.1991).

CONCLUSION

It is therefore RECOMMENDED that Plaintiffs complaint be DISMISSED, and this case be TERMINATED upon the Court’s docket.

1 . It appears that Hines received a Notice of Reconsideration from the Social Security Administration denying her application for benefits and has requested a hearing before an ALJ. (Doc. 11-1.)

1 . The Supreme Court explained the derivative jurisdiction doctrine in Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 83 L.Ed. 235 (1939) as follows: "[J]urisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. Where the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although in a like suit originally brought in a federal court it would have had jurisdiction.” Minnesota, 305 U.S. at 389, 59 S.Ct. 292.

2 . Plaintiff has the burden of proving federal subject matter jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).