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Parker v. Colvin

United States District Court, D. Kansas

June 10, 2014

MICHAEL E. PARKER, SR., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

The Court has under consideration the following filings by plaintiff: (1) Plaintiff Request Review of the Commissioner's Unfavorable Decision of the Evidence (Doc. 12) [hereinafter "Request for Review"]; (2) Motion Evidence is Construed Collectively (Doc. 14) [hereinafter "First Evidence Motion"]; (3) Motion for Evidence to be Accepted (Doc. 20) [hereinafter "Second Evidence Motion"]; (4) Motion Awarding the Plaintiff Judgment (Doc. 25); and (5) Entry of Default (Doc. 26), which is docketed as a Motion for Default Judgment. In addition, it has under consideration a Motion to Strike (Doc. 22) filed by defendant. All of the motions are now ripe for ruling. For the foregoing reasons, the Court grants in part and denies in part the motion to strike; strikes several filings, including the Request for Review, as set out herein; denies the four motions filed by plaintiff; and sets new deadlines for the filing of required briefs.

I. BACKGROUND

Plaintiff commenced this action pro se on July 26, 2013, by filing a Civil Complaint (Doc. 1) against the Commissioner of Social Security ("Commissioner"). The Court granted him permission to proceed in forma pauperis and ordered the United States Marshal to serve the Commissioner.[1] Summons were returned executed.[2] Plaintiff then filed an application for entry of default with attached exhibits, [3] the Commissioner timely filed an Answer[4] with a certified copy of the administrative record, [5] and the Court denied the application for default given the filed Answer.[6] Following that denial, plaintiff filed the Request for Review, "Plaintiff Response to the Defendant Answer" (Doc. 13), and his First Evidence Motion.

Given the filings by the pro se plaintiff, uncertainty whether he intended the Request for Review to constitute the brief required by D. Kan. Rule 83.7.1(d), and his documented history of filing multiple motions for review and supplements in his prior social security appeal (Case No. 11-2541-JWL), the Court advised plaintiff that "it will allow him to file one brief which conforms with the requirements of D. Kan. Rules 7.6 and 83.7.1(d)."[7] In an effort to avoid confusion as to whether he intended the Request for Review to be the required brief, the Court directed him to file a notice expressing his intent on or before December 23, 2013.[8] The Court further ordered:

If plaintiff does not intend the Request for Review (Doc. #12) to be his brief, the Court will strike the document and allow plaintiff until January 2, 2014 to file his brief. If plaintiff does intend the Request for Review (Doc. #12) to be his brief, defendant's response shall be due on January 22, 2013. If plaintiff does not file a timely notice pursuant to this order, the Court will construe the Request for Review (Doc. #12) to be his brief and defendant's response shall be due on January 22, 2013.[9]

Three days after that order, plaintiff filed a "Brief of the Plaintiff" with the notation, "D. Kan. 83.7.1(d)."[10] The next day, he filed "Submitting this Attachment to the Plaintiff Brief."[11] Two weeks later, he filed "Brief of the Plaintiff" that the Clerk has docketed as a supplemental brief.[12] And then, on January 2, 2014, he filed his Second Evidence Motion and a "Memorandum and Order" that has been docketed as "Statement."[13]

On January 10, 2014, the Commissioner moved to strike the documents that exceed the Court's "one brief" limitation due to the uncertainty caused by plaintiff's filings.[14] Plaintiff filed a response to the motion that provides no clarification, followed three weeks later by "An Attachment to the Plaintiff's Memorandum and Order."[15] In March 2014, he filed his Motion Awarding the Plaintiff Judgment.[16] And, on May 8, 2014, he moved for default judgment.[17] Defendant responded to that motion on May 16, 2014.[18] No one has filed anything since.

II. SEEKING JUDICIAL REVIEW

The procedure for seeking judicial review of orders of administrative agencies, including appealing a social security decision, is well-established. See 42 U.S.C. § 405(g); D. Kan. Rule 83.7.1. As amended in March 2004, Rule 83.7.1 provides a comprehensive procedure for seeking review of an agency order. To obtain review of such an order in this Court, including social security decisions, the claimant must petition for review as set out in D. Kan. Rule 83.7.1(a)(1). Although plaintiff's pro se Complaint does not comply with all provisions of that subparagraph, the Court liberally construes it as petitioning for judicial review under § 405(g). See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (recognizing that pro se pleadings are liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers"). The Commissioner, moreover, treats the Complaint as a social security appeal under § 405(g). See Answer at 1-2.

As required by § 405(g)[19] and D. Kan. Rule 83.7.1(c)(1), [20] the Commissioner filed the administrative record with her answer. Consistent with the statute and local rule, the certified copy of the transcript of the administrative record should contain (A) the order sought to be reviewed; (B) the report or findings on which the order is based; and (C) "the pleadings, evidence, and proceedings before the agency." See D. Kan. Rule 83.7.1(b)(1); 42 U.S.C. § 405(g). A stipulation or court order may supply or correct any material omissions from or misstatements in the record. See D. Kan. Rule 83.7.1(b)(2). And the Court "may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g) (referred to as sentence-six remand).

The filing of the administrative record started a forty-five day deadline for plaintiff to "serve and file a brief conforming to the requirements of D. Kan. Rule 7.6." See D. Kan. Rule 83.7.1(d). Following service of that brief, the Commissioner has thirty days to respond, followed by a fourteen-day period for the party seeking review to file a reply brief. Id. After the filing of these briefs, "[t]he court will render a decision upon the briefs and the record, without oral argument, unless the court otherwise directs." Id.

Three days after the Commissioner filed her Answer, plaintiff filed his Request for Review, followed quickly by a response to the Answer and his First Evidence Motion. To facilitate the briefing procedure in this social security case and in an attempt to streamline and clarify the filings, the Court issued its December 9, 2013 order wherein it limited plaintiff to filing one brief; set a December 23, 2013 deadline for him to inform the Court whether he intended his Request for Review to be his one brief; set a January 2, 2014 deadline for filing a brief (if plaintiff did not want the Request for Review to be his one brief); and set a January 22, 2014 deadline for the Commissioner to file her responsive brief.

Despite that court order, plaintiff's subsequent filings have only confused matters further. Prior to the December deadline, he filed a brief and an exhibit in support. But neither filing states his intent regarding whether he wants the Request for Review to serve as his one brief. And then, prior to his January deadline, he filed another brief, his Second Evidence Motion, and a "Memorandum and ...


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