United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
THOMAS M. COFFIN, Magistrate Judge.
Pro se plaintiff, Charles Bobo, brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's applications for disability insurance benefits and supplemental security income benefits. Plaintiff moves to proceed in forma pauperis (IFP). A review of plaintiff's application reveals he is unable' to afford the costs of litigation and his application (#4) is therefore granted. However, the clerk shall not issue process as the case should be dismissed for failure to timely seek review.
The court should dismiss, at the earliest practical time, certain IFP actions that fail to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). In determining the sufficiency of a prose complaint, the court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). The court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist. , 132 F.3d 902, 906 (3d Cir. 1997).
Plaintiff alleges as follows:
Fact of case - Claims under Title XVI supplemental security income and Title II.... [T]they denied in United State Court of Appeal Ninth Circuit.
Defendant Involved - Social Security Administration receive letter from appeal council action you have 60 days to file a civil action....
Conduct occurred = 6-99
Complaint (#1) at p. 3 (sic throughout).
The reference to the Ninth Circuit in the complaint alerted the court to the Ninth Circuit case of Charles L. Bobo v. Colvin, 2014 WL 1568868 (9th Cir. April 21, 2014) in which the court dismissed Charles L. Bobo's complaint challenging the Commissioner's decision to decline to reopen earlier claims as time-barred. A review of the history of that case reveals a Washington District Court order in which it determined the following facts:
On July 6, 2010, an Administrative Law Judge (ALJ) issued a favorable decision, finding plaintiff disabled and entitled to Supplemental Security Income under Title XVI of the Social Security Act. (Dkt. 12 at 2 and Dkt. 12-1, Ex. 1.) [footnote omitted] Subsequently, the Appeals Council, on January 3, 2012, issued a notice denying plaintiff's request for review (id., Ex. 2), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 416.1481.
Consistent with the applicable statute of limitations and regulations, the Notice of Appeals Council Action advised plaintiff he could commence a civil action within sixty days of the date of its decision, and that it would be presumed he received a copy of the decision within five days of the decision date unless he showed otherwise. (Dkt. 12-1, Ex. 2.) The notice also stated that, if plaintiff could not file for court review within sixty days, he could ask the Appeals Council for an extension, providing a reason for the request. (Id.) The Appeals Council sent the request to both plaintiff and his legal representative at that time. (Id.) (See also id., Ex. 1.)
Plaintiff initiated the instant action on October 11, 2012. (Dkt. 1.) He acknowledged in his complaint that the January 3, 2012 Appeals Council notice advised he had sixty days to file a civil complaint. (Id. at 2.) The Commissioner moves for dismissal of the complaint as filed some seven months after the expiration of the statute of limitations. (Dkt. 12.)
Order Granting Motion to Dismiss (#15 in Case No. C12-1730-MAT (W.D.Wash. February 5, 2013)) at pp. 1-2.
The district court further determined in that case that the running of the statute of limitations was apparent on the face of the ...