The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM DECISION and ORDER
Presently before the court is an application to proceed
without payment of fees in the instant case pursuant to
28 U.S.C. § 1915. Section 1915 provides that the court may
authorize commencement, prosecution, or maintenance of a suit
without the prepayment of fees by an individual who shows that
he or she is unable to pay court fees. 28 U.S.C. § 1915(a)(1).
Plaintiff in the instant case has met the financial
Section 1915 also provides, however, that the court shall
dismiss the case at any time if the court determines, inter
alia, that the action is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. Id. §
A review of the complaint and petition in the instant case
shows that plaintiff is seeking a review of a decision by the
Commissioner of Social Security, appointing a representative
payee for plaintiffs Supplemental Security Income (SSI)
benefits. Plaintiff disagrees with this decision and is
requesting the immediate reinstatement of payments directly to
him. Plaintiff initially filed this action in the Eastern
District of New York, and November 9, 2000, the Honorable Nina
Gershon, United States District Judge transferred this action to
the Northern District of New York. (Docket # 8). Plaintiff has
included an order to show cause.
Plaintiff has named three defendants in the instant action:
Kenneth S. Apfel, Commissioner of Social Security; Beatrice M.
Disman, Regional Commissioner of the New York Region of the
Social Security Administration; and Robert Stanton, District
Manager of the Syracuse Local Office of the Social Security
Administration. Plaintiff purports to bring this action either
under the Social Security Act, 42 U.S.C. § 405(g), or under
28 U.S.C. § 1361, an action for mandamus.
The only proper defendant in an action under section 405(g) is
the Commissioner of Social Security. See Ostroff v. State of
Florida, Department of Health & Rehabilitative Services,
554 F. Supp. 347, 352 (M.D.Fla. 1983) (section 405(g) only authorizes
suit against the Secretary of Health and Human Services, now the
Commissioner of Social Security). Thus, plaintiff in the instant
case can state no claim under section 405(g) against defendants
Disman and Stanton.
Additionally, section 405(g) requires that plaintiff exhaust
his administrative remedies and appeal from a "final decision"
of the Commissioner. 42 U.S.C. § 405(g). See Blanchard v.
Social Security Administration, 1993 WL 72353, *1-3 (E.D.N.Y.
March 1, 1993). It is well-settled that the district court may
not review an adverse decision of the Commissioner regarding the
plaintiffs entitlement to SSI except as expressly authorized by
the Social Security Act, 42 U.S.C. § 1383(c)(3)(incorporating
section 405(g)). Id. Plaintiff must first present his claim to
the Commissioner. Id. (citing Schweiker v. Chilicky,
487 U.S. 412, 424, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Heckler
v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 80 L.Ed.2d 622
Alternatively, plaintiff seeks to bring an action for mandamus
under 28 U.S.C. § 1361. However, section 1361 provides for
mandamus jurisdiction to review otherwise unreviewable
procedural issues, not related to the merits of the claim for
benefits. Ciccone v. Apfel, 38 F. Supp.2d 224, 226 (E.D.N.Y.
1999). The common law writ of mandamus is intended to provide a
remedy only if plaintiff has exhausted all other avenues of
relief and if the defendant owes plaintiff a clear
non-discretionary duty. Heckler v. Ringer, 466 U.S. at 616-17,
104 S.Ct. 2013.
In the instant case, plaintiff is challenging the agency's
determination that plaintiff requires a representative payee.
Any issues raised are intertwined with the merits of plaintiffs
claim. Plaintiffs papers contain various administrative
documents, letters, and e-mails to agency personnel regarding
plaintiffs claims. In these documents, plaintiff also appears to
allege some sort of fraud or wrongdoing by some individuals.
Plaintiff challenges the reasons for the assignment of a
representative payee and questions the motives behind this
action. Plaintiff had available administrative remedies to
challenge that decision. He has chosen to file this action prior
to completing these challenges.*fn1 Thus, mandamus is not
available as a jurisdictional basis for plaintiffs action.
Finally, plaintiff does not make a specific constitutional
claim that could excuse the exhaustion requirement. See
Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d
192 (1977) (court may maintain jurisdiction if plaintiff
presents colorable constitutional claim). Plaintiff includes a
conclusory paragraph in a document submitted with his complaint
regarding waiver of the exhaustion requirement and alludes to a
due process issue, but does not make a specific constitutional
claim in his complaint. Although the court is dismissing this
action based on the complaint, the dismissal is without
prejudice to the plaintiff properly filing after the exhaustion
of administrative remedies or upon amendment of the complaint to
assert a colorable constitutional issue, excusing the exhaustion
Having considered the application to proceed without
prepayment of fees under 28 U.S.C. § 1915, it is hereby
ORDERED, that the application is GRANTED. The Clerk is
directed to file the ...