Knight-Bey v. Bacon
| Decision Date | 21 April 2020 |
| Docket Number | 8:19CV330 |
| Parties | DR. PHYLLIS MARIE KNIGHT-BEY, Plaintiff, v. DON BACON, Nebraska Congressman of the United States; OFFICE OF INSPECTOR GENERAL (OIG); SOCIAL SECURITY ADMINISTRATION (SSA); NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS); SARAH E. PFEIFER, Disability Examiner for Nebraska Department of Education; and DR. CHRISTOPHER R. MILNE, PHD, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff, a non-prisoner, has been given leave to proceed in forma pauperis. (Filing 7.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
Plaintiff purports to bring federal tort claims and criminal charges for "Social Security Insurance Fraud," embezzlement, "extortion fraud," theft, obstruction of justice, and mail fraud due to unpaid Social Security benefits that were approved, but were not received in full. Plaintiff's confusing Complaint seems to allege that she was approved to receive SSI1 and SSDI2 benefits on October 15, 2015, and she was to begin receiving SSI benefits on November 1, 2015, and SSDI benefits on November 3, 2015; her benefits were "held back for 9 months in hopes that I would pass away due to the severity of my illness some greedy demon decided to play games with my life and mind by altering my medical records award start date using a psychiatric physician signature to falsify documents . . . altering my medical start to February 1, 2016 to embezzeling [sic] my money"; the Social Security Administration ("SSA") required Plaintiff to see a psychiatrist in order to diagnose her as delusional so the SSA could steal her SSI benefits; Plaintiff was entitled to two "benefit back payments"—one for a physical disability from October 15, 2015, to February 1, 2016, and one for a mental disability from February 1, 2016, to August 2016, but both types of benefits were "severely altered" downward due to "extreme calculated errors"; and the SSA unlawfully sent those back payments to the Nebraska Department of Health and Human Services ("DHHS"), which "stole" a portion of those benefits from Plaintiff. In general, Plaintiff complains that she has two disabilities, four "approval dates," and less-than-full disbursements that have robbed her of her approved benefits.
Plaintiff's Complaint (Filing 1) and Supplement (Filing 4) only minimally describe the particular actions of some of the Defendants: (1) Defendant Dr. Christopher Milne, PhD, is a former employee of the SSA who "forged" Plaintiff's medical documents to indicate a "false Supplemental Security Income approval date of June 2, 2016" instead of October 15, 2015; (2) the SSA Office of the Inspector General told her that her Social Security benefits were reduced to account for the time period in which Plaintiff lived with her son and did not pay for food or rent; and (3) Defendant Sarah E. Pfeifer, a disability examiner for the State of Nebraska, asked Plaintiff to allow her to set up an appointment with a psychiatrist to determine Plaintiff's "eligibility" eventhough Plaintiff had been "approved for benefits on October 15, 2015" for her "heart disability."
Plaintiff requests "an audited and full payment disburs[e]ment of all my back payments, monthly payments and settlement in recovery of relief of said amount $1,000,000.00 in debt notes covering employee fraud damages." (Filing 1 at CM/ECF p. 3.)
The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ().
"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).
Plaintiff makes no factual allegations regarding Defendant Bacon, nor is it apparent how this Defendant could have been involved in the SSA's failure to properly and fully disburse benefits to Plaintiff. "A complaint that only lists a defendant's name in the caption without alleging that the defendant was personally involved in the alleged misconduct fails to state a claim against that defendant." Banks v. New York Police Dep't, No. 4:15CV3012, 2015 WL 1470475, at *2 (D. Neb. Mar. 31, 2015); see also Krych v. Hvass, 83 Fed. App'x 854, 855 (8th Cir. 2003) (unpublished) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ()). Therefore, Plaintiff has failed to state a claim upon which relief can be granted against this Defendant.
Suits against federal agencies (Defendants SSA and OIG in this case), as well government officials acting in their official capacities3 (Defendant Milne, alleged to be a SSA employee when he committed the acts at issue), are really suits against the federal government itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Accordingly, these Defendants enjoy sovereign immunity from suit absent consent, and such consent is a prerequisite for jurisdiction. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (); United States v. Mitchell, 463 U.S. 206, 212 (1983) (). Thus, the court in the first instance must determine whether a statutory waiver of sovereign immunity exists before it can allow claims against the federal government to proceed. See Mitchell, 463 U.S. at 212.
Plaintiff's claims in this case—based in fraud—would fall under the Federal Tort Claims Act4 ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680 (Westlaw 2020), which provides "a limited waiver of the United States's sovereign immunity, to permit persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court." Mader v. United States, 654 F.3d 794, 797 (8th Cir. 2011). However, a "federal district court does not have jurisdiction over an FTCA claim unless it was first . . . presented to the appropriate federal agency . . . within two years of when the claim accrued." Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009) (quotation marks and citation omitted); 28 U.S.C. § 2675(a) (). Conformity with § 2675(a) is a jurisdictional term of the FTCA's limited waiver of sovereign immunity. Mader, 654 F.3d at 808. Because Plaintiff's Complaint does not allege that she has exhausted her administrative remedies for purposes of the FTCA, such claims must be dismissed without prejudice. See Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011) ().
However, even if Plaintiff had exhausted her administrative remedies, the FTCA does not waive sovereign immunity for torts "arising out of . . . misrepresentation [or]deceit," 28 U.S.C. § 2680(h), which includes fraud claims like those asserted here. United States v. Perry, 706 F.2d 278, 279-80 (8th Cir. 1983) (); United States v. Longo, 464 F.2d 913, 915 (8th Cir. 1972) ().
Finally, courts have held that 42 U.S.C. § 405(h) bars tort claims such as fraud from being asserted against the SSA when the allegations "arise under" the Social Security Act. Here, Plaintiff's fraud claims directly relate to the SSA's erroneous distribution of benefits. This is exactly the kind of claim 42 U.S.C. § 405(h) prohibits. See 42 U.S.C. § 405(h) (); Schweiker v. Chilicky, 487 U.S. 412, 429 (1988) (...
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