Hamm v. Comm'r of Soc. Sec. Admin.

• Decision Date: 07 October 2020
• Docket Number: C/A No. 9:20-2427-RMG-MHC
• Parties: Michael E. Hamm, Plaintiff, v. Commissioner of Social Security Administration and State of South Carolina, Defendants.
• Court: U.S. District Court — District of South Carolina

Michael E. Hamm, Plaintiff, v. Commissioner of Social Security Administration and State of South Carolina, Defendants.

C/A No. 9:20-2427-RMG-MHC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 7, 2020

REPORT AND RECOMMENDATION

The pro se Plaintiff, Michael E. Hamm, filed this action in the Court of Common Pleas for Richland County. Defendants, the Commissioner of the Social Security Administration (Commissioner) and the State of South Carolina, removed the case to this Court on June 26, 2020. ECF No. 1. The State of South Carolina filed a Motion to Dismiss (ECF No. 4) on July 1, 2020; the Commissioner filed a Motion to Dismiss (ECF No. 5) on July 6, 2020; and the Court entered a Roseboro Order, advising Plaintiff of the importance of the dispositive motions and the need for him to file an adequate response, on July 13, 2020. ECF Nos. 9 and 10. Plaintiff has not filed any response to either Defendant's Motion to Dismiss.

PLAINTIFF'S FAILURE TO PROSECUTE

This action should be dismissed for Plaintiff's failure to prosecute and failure to respond to the Court's Roseboro Order. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, a court may sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. The United States Court of Appeals for the Fourth Circuit has held that a court, in reviewing such a dismissal, should "ascertain (1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the existence of a sanction less drastic than dismissal." Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (internal quotation marks and citation omitted).

As noted above, Plaintiff was specifically advised in the Roseboro Order of the importance of the dispositive motions and of the need for him to file an adequate response. Plaintiff was also specifically advised that if he failed to file a properly supported response, Defendants' motions may be granted, thereby ending his case. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro Order, Plaintiff has failed to respond to the Roseboro Order or to contact the Court in any way.

Plaintiff is proceeding pro se and, thus, is solely responsible for his refusal to comply with the Court's Order. See Craft v. Astrue, No.1:10CV9, 2012 WL 6569021, at *2 (M.D.N.C. Dec. 17, 2012) (finding, pursuant to the standard set forth in Chandler Leasing, that the plaintiff proceeded pro se from the outset and thus demonstrated she was capable of filing pleadings and paper and she alone bore the responsibility for her failure to prosecute her case.). Defendants are suffering prejudice because of having to expend time and resources on a case in which the Plaintiff is unresponsive. Additionally, no sanctions other than dismissal appear to exist as Plaintiff is indigent and proceeding in forma pauperis (such that he is not subject to monetary sanctions). Further, because Plaintiff has failed to fully comply with an order of this court, it does not appear that any sanction less drastic than dismissal is available. See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (finding the magistrate judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal because any other course would have placed the credibility of the court in doubt and invited abuse).

Therefore, this case is subject to dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ballard, 882 F.2d at 95 (finding that dismissal of a suit did not constitute abuse of discretion where the plaintiff "failed to respond to a specific directive from the court"). Accordingly, it is recommended that this action be dismissed without prejudice for lack of prosecution and failure to respond to a court order. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed. R. Civ. P.; see also Coker v. International Paper Co., No. 08-1865, 2010 WL 1072643, at * 2 (D.S.C. Mar. 18, 2010) (noting that plaintiff can abandon claims by failing to address them in response to a dispositive motion.); Brown v. Nelsen, No. 2:19-CV-1613-RMG, 2020 WL 502677 (D.S.C. Jan. 31, 2020) (finding that dismissal for failure to prosecute should be without prejudice where the court lacked information indicating that plaintiff was deliberately proceeding in a dilatory fashion).

In the alternative, it is recommended that Defendant Commissioner's Motion to Dismiss be granted, in part, and Defendant State of South Carolina's Motion to Dismiss be granted, as discussed below.

MOTIONS TO DISMISS

The Commissioner moves to dismiss the Complaint for lack of subject-matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted. See ECF No. 5; Fed. R. Civ. P. 12(b)(1), (5), and (6); see also Fed. R. Civ. P. 12(h)(3). The State of South Carolina moves to dismiss the Complaint based on Plaintiff's failure to state a claim upon which relief can be granted. See ECF No. 4, Fed. R. Civ. P. 12(b)(6).

A. FACTS/BACKGROUND

Plaintiff is currently being held in the custody of the South Carolina Department of Mental Health (SCDMH) as a sexually violent predator (SVP) under the provisions of the South Carolina Sexually Violent Predator Act (SVP Act), S.C. Code Section 44-48-10 et seq., as part of the Sexually Violent Predator Treatment Program (SVPTP). See, e.g., Hamm v. Scaturo, No. 9:16-2960-RMG-BM, 2017 WL 3835809 (D.S.C. Aug. 10, 2017), report and recommendation adopted by, 2017 WL 3741305 (D.S.C. Aug. 29, 2017).¹ The SVPTP was previously administered by staff employed by SCDMH; however, beginning December 1, 2016, a private contractor, Correct Care of South Carolina doing business as Wellpath, began operating the SVPTP. See, e.g., Lott v. Budz, No. 6:19-CV-1087-RMG-KFM, 2020 WL 3052124, at *1 (D.S.C. Apr. 1, 2020), report and recommendation adopted sub nom. Lott v. Budtz, 2020 WL 3051320 (D.S.C. June 8, 2020); see also ECF No. 5-1 at 1-2.

Plaintiff asserts that, since 2014, he has written the Social Security Administration (SSA) on three occasions to "seek help in receiving partial or full disability benefits due to his continual health issues." ECF No. 1-1 at 3. He asserts that his first correspondence was returned, and he received no response to his second and third attempts to contact the SSA. Id. Plaintiff alleges that he has been disabled since 2013, "right after his bowel resection for Crohn's disease," and he was diagnosed with chronic white matter disease in September 2018. Plaintiff requests a response from the SSA and an award of disability benefits. He also contends that, as a civilly committed individual, he is eligible to be paid disability benefits. Id. at 3-4.

B. COMMISSIONER'S MOTION TO DISMISS

The Commissioner first contends that this action should be dismissed pursuant to Rules 12(b)(1) and 12(h)(3) because Plaintiff failed to exhaust his administrative remedies as to any claim for disability benefits, such that there is no "final judgment" giving this Court subject-matter jurisdiction. ECF No. 5-1 at 3-7. A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). Pursuant to Rule 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Lack of subject-matter jurisdiction may be raised at any time by a party or the Court. See Arbaugh, 546 U.S. at 506-507.

"When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, "the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

In this case, Plaintiff has not specified any basis for subject matter jurisdiction and "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff appears to allege that he is entitled to either Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act) or Social Security Income (SSI) under Title XVI of the Act. ECF No. 1-1. Judicial review in cases arising under Title II and Title XVI of the Act is authorized pursuant to Title 42, United States Code, Section 405(g). Congress thus has made clear that, for claims arising under the Act, judicial review is permitted only in accordance with Section 405...