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Wahrmann v. Commissioner of Social Security

United States District Court, Second Circuit

April 29, 2013

JOHN K. WAHRMANN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, et al., Defendants.

JOHN K. WAHRMANN, Plaintiff pro se.

ORDER and REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

The Clerk has sent me the above complaint, together with a motion to proceed in forma pauperis ("IFP"), filed by pro se plaintiff, John K. Wahrmann. (Dkt. Nos. 1, 2). Plaintiff has filed this action on a form used for claims brought under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

I. IFP Application

The court has reviewed plaintiff's IFP application. (Dkt. No. 2). Based upon the plaintiff's stated financial status, the court finds that the plaintiff is financially eligible to proceed without payment of fees.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555).

The court may also dismiss a claim under section 1915(e)(2)(B) if it determines that it plainly lacks jurisdiction. Yusim v. Social Security Administration, No. 12-CV-117, 2012 WL 194998, at *2 (E.D.N.Y. Jan. 23, 2012) (citing Prince v. Social Sec. Admin., No. 11-CV-4860, 2011 WL 5884851, at *2 (E.D.N.Y. Nov. 22, 2011)). The court has an independent obligation to examine the basis of its jurisdiction, and must dismiss an action if it "determines at any time that it lacks subject matter jurisdiction.'" Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990); Fed.R.Civ.P. 12(h)(3)). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint

A review of the form-complaint filed by plaintiff shows that he has named four defendants in this action: the Commissioner of Social Security ("the Commissioner"); Attorney John Kalil; the Office of Disability Adjudication and Review ("ODAR"); and Mental Health Connections ("MHC"). (Compl.) (Dkt. No. 1).

In the form-complaint, plaintiff states that he suffers from several disabilities, including fibromyalgia, clinical depression, and neurological impairments. (Compl. ¶ 4). Plaintiff states that defendants denied him "participation in a public service or program; failed to "make alterations to accommodate [his] disability; refused to review his "case" to determine if the "conclusion was justified by [the] evidence submitted; did not investigate and properly review [the] evidence available; were careless and showed depravity and reckless inconsideration in working with plaintiff; and did not treat the plaintiff with "reasonable consideration." (Compl. ¶ 5).

In a section of the form-complaint entitled "FACTS, " plaintiff states that the Commissioner lost plaintiff's original "application" in February of 2009, and "summarily" denied the application. (Compl. ¶ 6). He also states that the Commissioner denied plaintiff's appeal in November of 2012. Plaintiff also claims that the Commissioner summarily denied his appeal of the Administrative Law Judge's ("ALJ") April 25, 2012 decision by refusing to review the decision, even though it was "clear that there was a blatant error in the [ALJ's] decision. (Compl. ¶ 6, §§ 3-5).

Plaintiff states that his attorney, defendant Kalil, did not review the available records in order to submit a "complete record" of the plaintiff's medical history, nor did he properly support the appeal of the ALJ's decision with sufficient evidence. ( Id. §§ 6-8). Finally, plaintiff claims that defendant Mental Health Connections did not supply a complete medical record as requested by plaintiff and his attorney. ( Id. § 9). Plaintiff seeks damages in the amount of $200, 000, [1] together with fines and notices of reprimand to all the defendants. (Compl. ¶ 7, §§ 1-4). ...


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