IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

VANYA D. ROYAL, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:14-CV-59 

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Plaintiff Vanya D. Royal’s

complaint and petition to proceed in forma pauperis. For the

reasons set forth below, the Court: (1) DENIES the Vanya D. Royal

leave to proceed in forma pauperis (DE # 2); (2) GRANTS Vanya D.

Royal to and including April 21, 2014, to pay the $400.00 filing

fee; and (3) CAUTIONS Vanya D. Royal that if she does not respond

by that date, this case will be dismissed without further notice

for non-payment of the filing fee. 

BACKGROUND

According to the Plaintiff’s complaint, she sought both

Supplemental Security Income (“SSI”) and Disability Insurance

Benefits (“DIB”) from the Social Security Administration (“SSA”). 

The Plaintiff was ultimately awarded benefits in 2009, but claims

that she did not receive all the back pay to which she was

entitled. She indicates she appealed and requested a hearing but
her request was denied. She further alleges that she filed a

complaint against the individual responsible for this denial, Mr.

Reynolds, but she never heard anything in response to her

complaint. Then, in February of 2012, she received a letter from

the SSA responding and expressing regret for the delay. That

envelope was postmarked February 25, 2012, but the letter in the

envelope was dated April 26, 2011. It is not clear from the

complaint whether this letter was responding to her complaint

against Mr. Reynolds or to her claim for back pay, but the letter

indicated she could appeal. She filed a timely appeal on March 8,

2012, but the SSA deemed that appeal untimely. As a result, the

Plaintiff alleges her due process rights were violated. The

Plaintiff further indicates that she contacted Senator Joe

Donnelly’s office regarding her case on June 11, 2013, and that she

attempted to obtain legal aid through Indiana Legal Services to no

avail. 

The Plaintiff filed her complaint by using a preprinted form

for complaints under Title 42 U.S.C. § 1983. In indicating what

relief she is requesting, the Plaintiff writes: “[j]ustify a

hearing for my back pay.” 

DISCUSSION

The IFP statute, 28 U.S.C. section 1915, allows an indigent

plaintiff to commence a civil action without prepaying the

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administrative costs (e.g. filing fee) of the action. See 28

U.S.C. section 1915(a)(1); see also Denton v. Hernandez, 504 U.S.

25, 27 (1992). When presented with an IFP application, the

district court makes two determinations: (1) whether the suit has

sufficient merit; and (2) whether the plaintiff’s poverty level

justifies IFP status. See 28 U.S.C. section 1915(e)(2); Denton,

504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841 F.2d 751, 757 (7th

Cir. 1988). If a court finds that the suit lacks sufficient merit

or that an inadequate showing of poverty exists, the court must

deny the in forma pauperis application. See Smith-Bey, 841 F.2d at

757.

The Plaintiff brings this action pursuant to 42 U.S.C. § 1983,

which provides a cause of action to redress the violation of

federally secured rights by a person acting under color of state

law. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). 

Federal courts have jurisdiction to hear claims under § 1983

pursuant to 28 U.S.C. § 1331 which provides that “the district

court shall have original jurisdiction over all civil actions

arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. But, 42 U.S.C. § 405(h) provides

that:

The findings and decision of the Commissioner

of Social Security after a hearing shall be

binding upon all individuals who were parties

to such hearing. No findings of fact or

decision of the Commissioner of Social

Security shall be reviewed by any person,

tribunal, or governmental agency except as

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herein provided. No action against the United

States, the Commissioner of Social Security,

or any officer or employee thereof shall be

brought under section 1331 or 1346 of Title 28

to recover on any claim arising under this

subchapter.

42 U.S.C. § 405(h). In short, 42 U.S.C. § 405(h) prevents the

Plaintiff from bringing suit under § 1331 if her claim arises under

§ 405. Here, although the Plaintiff has framed her suit as a §

1983 action, she seeks a hearing and, ultimately, benefits due to

her under the Social Security Act. As a result, § 405 prevents the

Plaintiff from bringing suit under § 1331, including the instant

action under § 1983. 

The Court has considered whether it has jurisdiction to hear

the Plaintiff’s complaint under 42 U.S.C. § 405(g), which allows

judicial review of final agency decisions. But § 405(g) provides

that:

Any individual, after any final decision of

the Commissioner of Social Security made after

a hearing to which he was a party,

irrespective of the amount in controversy, may

obtain a review of such decision by a civil

action commenced within sixty days after the

mailing to him of notice of such decision or

within such further time as the Commissioner

of Social Security may allow.

42 U.S.C. § 405(g). The last agency action referenced in the

Plaintiff’s complaint is a denial of an appeal she filed on March

8, 2012. She does not provide a date that the agency denied that

appeal, although it appears that denial occurred before she

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contacted Senator Joe Donnelly’s office about her case on June 11,

2013. At this juncture, it appears that more than 60 days has

passed since the last agency action, and the Plaintiff has not

indicated that the Commissioner has agreed to allow her to file an

action for review after the sixty days has elapsed. Accordingly,

while the Plaintiff meets the poverty criteria for IFP, it appears

that the Plaintiff’s suit is without merit. The request to proceed

IFP must be denied. 

CONCLUSION

For the foregoing reasons, the Court: 

(1) DENIES Vanya D. Royal leave to proceed in forma pauperis

(DE # 2); 

(2) GRANTS Vanya D. Royal to and including April 21, 2014, to

pay the $400.00 filing fee; and 

(3) CAUTIONS Vanya D. Royal that if she does not respond by

that date, this case will be dismissed without further notice for

non-payment of the filing fee. 

DATED: March 21, 2014 /S/RUDY LOZANO, Judge

 United States District Court

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