6:25-cv-01152•Cahail v. Social Security Administration, Commissioner of et al
Cahail v. Social Security Administration, Commissioner of et al
6:25-cv-01152Ksd1 mag 2026
Testo completo
1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KAREN CAHAIL, ) ) Plaintiff, ) ) v. ) Case No. 25-1152-JWB-GEB ) FRANK BISIGNANO COMMISSIONER OF ) SOCIAL SECURITY ADMINISTRATION, ) UNKNOWN AGENTS OF SOCIAL ) SECURITY ADMINISTRATION, ) (FNU) KEYES, DAVID PAGE, ) KATE E. BRUBACHER, ) and BRIAN VANORSBY, ) ) Defendants. ) ) NOTICE AND REPORT AND RECOMMENDATION OF DISMISSAL Plaintiff filed her Complaint (ECF No. 1) on July 14, 2025, and simultaneously filed a Motion to Proceed without Prepayment of Fees (ECF No. 3, sealed). On July 17, 2025 Plaintiff also filed a Notice (ECF No. 4) with additional facts provided. After consideration of all pleadings, for the reasons set forth herein, the Court RECOMMENDS DISMISSAL of Plaintiff’s claims (ECF No. 1), for failure to state a claim and directs service be stayed pending review of this Report and Recommendation. I. NOTICE Within fourteen (14) days after Plaintiff is served with a copy of this Report and Recommendation, she may, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) file written objections to the same. Plaintiff must file any objections within the Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 1 of 9
2 time prescribed in the event she seeks appellate review of the proposed findings of fact, conclusions, of law, or recommended disposition. II. Background1 Plaintiff filed her Complaint, naming Frank Bisignano the Commissioner of the Social Security Administration (“SSA”) and unknown Social Security agents as Defendants and (fnu) Keyes, David Page, Kate E. Brubacher, and Brian Vanorsby. The Complaint alleges violations of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”), 42 U.S.C. § 1983 (“Section 1983”), the Social Security Act (20 C.F.R. § 404), Administrative Procedures Act (5 U.S.C.A. § 557) (“APA”), and the Federal Tort Claims Act (28 U.S.C.A. §§ 1346, 2671, et seq.) (“FTCA”) as the basis for Plaintiff’s claims. She seeks redress for alleged damages incurred from the garnishment of overpayments of her Social Security benefits. Plaintiff contends the charged overpayments resulting in garnishment began in April 2018 and continued through February 2021 causing her to have to take out predatory loans as well as significant emotional stress. She contends Frank Bisignano failed to provide proper oversight as acting commissioner of the SSA. Further, she contends alleged representatives Kate E. Brubacher and Brian Vanorsby had her previous case regarding the overpayments dismissed. (fnu) Keyes is alleged to have sent the letter regarding withholding benefits in Plaintiff’s matter. Lastly, Plaintiff contends Administrative Law Judge, David Page rendered the decisions 1 Unless otherwise indicated, the information recited in this section is taken from the Complaint (ECF No. 1) and Notice (ECF No. 4). This background information should not be construed as judicial findings or factual determinations. Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 2 of 9
3 concerning Plaintiff's benefits that caused her harm. Plaintiff contends these claims were presented through administrative procedures. She pleads there was a hearing at the Office of Appellate Operations on August 12, 2024 as well as a congressional inquiry into her claim on July 13, 2025. She requests $50,000 in damages and repayment of the overpayments garnished by the Administration. Plaintiff filed her Financial Affidavit along with the present motion on July 14, 2025.2 III. Analysis When a party seeks to proceed without the prepayment of fees, the in forma pauperis statute, 28 U.S.C. § 1915, requires the court to screen the party’s complaint. Under § 1915, sua sponte dismissal of this case is required if the court determines the action: 1) is frivolous or malicious; 2) fails to state a claim upon which relief may be granted; or 3) seeks relief from a defendant who is immune from suit. The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.”3 After application of these standards, the undersigned Magistrate Judge recommends dismissal of Plaintiff’s claims. After thorough review of Plaintiff’s Complaint, the Court identifies multiple insufficiencies in the pleading. Plaintiff fails to plead a constitutional claim under Bivens or Section 1983. Further, she fails to plead the exhaustion of administrative remedies under the Social Security Act, APA, and FTCA sufficient to state a claim under each. Thus, subject matter jurisdiction for this Court is not established by the pleadings and the matter 2 ECF No. 3-1, sealed. 3 Harris v. Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989) (citing language contained in § 1915(d), prior to the statute’s amendment in 1996)). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 3 of 9
4 ought to be dismissed. Where the Court finds Plaintiff’s failure to comply with Fed. R. Civ. P. 8(a) is fatal in bringing her claims in federal court, the Court RECOMMENDS the District Judge dismiss Plaintiff’s claims (ECF No. 1) for failure to comply with Rule 8(a) and failing to state a claim upon which relief may be granted. Fed R. Civ. P. 8(a)(2) requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” This requires the complaint state more than “labels and conclusions” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.”4 Because Plaintiff proceeds pro se, her pleadings must be liberally construed.5 However, she still bears the burden to allege “sufficient facts on which a recognized legal claim could be based”6 and the Court cannot “take on the responsibility of serving as [her] attorney in constructing arguments and searching the record.”7 Finally, Fed. R. Civ. P. 8 “demands more than naked assertions.”8 Under Fed. R. Civ. P. 8(a), every complaint must contain three minimal pieces of information: 1) the pleading should contain a short and plain statement of the claim showing Plaintiff is entitled to relief; 2) a short and plain statement of the grounds for the Court’s jurisdiction; and 3) a statement of the relief requested. If any of these requirements are absent, even after providing a liberal construction to Plaintiff’s Complaint, the court “is 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 5 Hall v. Bellmon, 935 F. 2d 1106, 1110 (10th Cir. 1991). 6 Id. 7 Mays v. Wyandotte County Sheriff's Dep’t, 419 F. App’x 794, 796 (10th Cir. 2011) (internal edits omitted) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)). 8 Cohen v. Delong, 369 F. App’x 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 4 of 9
5 compelled to recommend that the action be dismissed.”9 Mere “allegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim.”10 And while a court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.”11 A pro se litigant is not relieved from following the same rules of procedure as any other litigant.12 The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.”13 Initially, Plaintiff fails to establish a basis for her constitutional claims. Plaintiff refers to Bivens and Section 1983 together, as if they are the same cause of action, and checks the box on the Civil Complaint Form for proceeding under both causes of action. But Bivens is a cause of action against individual federal actors only, while Section 1983 is one against state actors only.14 Plaintiff makes allegations against the Commissioner, Administrative Judge, and representatives of the SSA. Because there is nothing in the Complaint to support a finding that any named Defendant acted “under color of state law” 9 Snider v. Burton, No. 15-1043-JTM, 2015 WL 867423, at *2 (citing requirements under Rule 8), report and recommendation adopted, No. 15-1043-JTM, 2015 WL 1442096 (D. Kan. Mar. 30, 2015). 10 Id. (quoting Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977)); see also Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). 11 Erickson v. Pardus, 551 U.S. 89, 94 (2007). 12 See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). 13 Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). 14 See Paulino v. One Unknown Dep. of U.S. Marshal Serv., No. 05-3348-SAC, 2006 WL 2088331, at *3 (D. Kan. July 25, 2006), aff'd sub nom. Paulino v.(FNU)(LNU), 203 Fed. Appx. 942 (10th Cir. 2006) (unpublished). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 5 of 9
6 rather than federal administrative law, the Court finds Plaintiff's claims for relief under Section 1983 should be dismissed.15 But further Plaintiff pleads a Bivens claim based on charged overpayments by the individuals associated with the SSA. However, the Supreme Court has explicitly refused to extend Bivens remedies to money damages sought for denials of Social Security benefits.16 Federal Courts find that “meaningful safeguards or remedies” already exist within the statutory framework of the Agency's review process and Bivens claims are then unnecessary in the Social Security context because the congressional scrutiny of Social Security’s process is already intense.17 Thus, any of Plaintiff’s claims for monetary relief pursuant to Bivens based on Plaintiff’s claimed SSA garnishments should also be dismissed. Lastly, Plaintiff fails to plead she is entitled to the relief requested under any of the federal statutes cited where she fails to plead the exhaustion of administrative remedies prior to suit. For any violation of the Social Security Act, the administrative review process for the SSA consists of several steps outlined by statute.18 While the Court understands the steps to be taken can be daunting, it is the law, and each step must be fulfilled for a federal court to exercise any review powers. 15 Burke v. Corrections Corp. of Am., No. 09-3068-SAC, 2009 WL 1631579, at *2 (D. Kan. June 10, 2009). 16 See Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994) (decisions by federal agencies). 17 Schweiker, 487 U.S. at 425–26. 18 20 C.F.R. § 404.900. Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 6 of 9
7 A party must first receive an initial determination on their claim, and if they are unsatisfied, they can seek reconsideration. If a party remains unsatisfied with the reconsideration determination, they may request a hearing before an Administrative Law Judge to review it. Then, if a party remains dissatisfied with the decision of the Administrative Law Judge, they can request the Appeals Council review the decision. Only once these first four steps are complete, the SSA has made its’ “final decision.”19 And when it comes to judicial review of any SSA decisions, exhaustion of administrative remedies is a jurisdictional requirement because Congress has made it clear that only final decisions made by the Commissioner of the SSA can be reviewed in federal court.20 There are three requirements for judicial review of a decision on Social Security benefits under 42 U.S.C. § 405(g): 1) a “final decision” of the Commissioner after a hearing; 2) commencement of a civil action within 60 days of the mailing of notice of the Commissioner's final decision; and 3) filing the action in an appropriate district court.21 While Plaintiff does plead the Administrative Law Judge, David Page, denied her appeal “based on the fact that [“she”] was not contesting the underlying circumstances of [“her”] overpayment or the amount,” as well as a subsequent “congressional inquiry” into her claims, she does not reference a “final decision” of the Commissioner after any appeal. 19 20 C.F.R. § 404.900 (a)(5). 20 42 U.S.C. § 405(g); Heckler v. Ringer, 466 U.S. 602, 617 (1984) (where claimants “have an adequate remedy in § 405(g) for challenging all aspects of the Secretary's denial of their claims....[,] § 405(g) is the only avenue for judicial review of [their] claims for benefits.”) (citations omitted). See also Kendall v. Watkins, 998 F.2d 848 (10th Cir.1993) (“[U]nless plaintiff first presented her claims to the proper federal agency and that agency finally denied them, the district court would not have had jurisdiction over plaintiff's FTCA claims.”). 21 Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 7 of 9
8 The decision of the Administrative Law Judge would need to be reviewed and determined by the SSA Appeals Council before a “final decision” by the agency for purposes of federal court review would exist. Because it is not clear from Plaintiff's Complaint that Plaintiff received a “final decision” of the Commissioner after a hearing, or if review was ever requested from the Appeals Council, no “final decision” is pled. Plaintiff merely pleads a “congressional review” after the Judge’s initial determination, which is not a process for final determination per the statute. Thus, Plaintiff fails to allege facts establishing this Court has jurisdiction under 42 U.S.C. § 405(g) to review a final SSA determination.22 And the exhaustion of administrative remedies is required by each federal statute Plaintiff cites. Where the underlying statute requires a plaintiff to exhaust available administrative remedies before seeking judicial review under the APA, then an appeal to “superior agency authority” is a prerequisite to judicial review under the APA as well.23 The FTCA “bars claimants from bringing suit in federal court until they have exhausted their administrative remedies” too.24 So, where Plaintiff fails to allege a final decision by the relevant agency, the SSA, in her pleadings, she fails to meet the threshold requirement to bring a claim for federal court review under any of the cited statutes. Fed. R. Civ. P. 8 does not require Plaintiff to state precisely each element of her claims or describe every fact with specific detail, but it does require her to set forth 22 L.L. v. Commr. of Soc. Sec. Administration, No. 21-4022-SAC, 2021 WL 12171570, at *1 (D. Kan. Apr. 15, 2021). 23 Darby v. Cisneros, 509 U.S. 137, 147 (1993). 24 McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); 28 U.S.C. § 2675(a). See also Barnes v. U.S., 776 F.3d 1134, 1139 (10th Cir. 2015). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 8 of 9
9 sufficient factual allegations on which a recognized legal claim could be based.25 Labels or allegations of conclusions are insufficient when no facts are alleged.26 The absence of facts to plausibly support Plaintiff’s claim make it impossible for a Court to establish a basis for jurisdiction or for Defendants to have fair notice of what is being alleged against them.27 Here, there are simply no facts that tend to support a “final decision” was made, or any basis for federal jurisdiction over Plaintiff’s claims under the statutes cited. After a thorough review of the record, the Court finds Plaintiff’s Complaint is subject to dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Where Plaintiff’s pleading fails to establish a basis for this Court’s jurisdiction, her claims should be dismissed. For the reasons described above, IT IS RECOMMENDED Plaintiff’s Complaint (ECF No. 1) be DISMISSED for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). IT IS SO ORDERED. Dated this 30th day of April 2026, at Wichita, Kansas. s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge 25 Henderson v. Ojile, No. 97-4098-SAC, 1997 WL 723432, at *2 (D. Kan. Oct. 31, 1997); Hall, 935 F.2d at 1110. 26 Singleton v. Convergys Corp., No. 16-2614-DDC, 2016 WL 11397820, at *2 (D. Kan. Sept. 21, 2016). 27 Weaver v. City of Topeka, No. 94-4224-SAC, 1995 WL 783628, at *7 (D. Kan. Dec. 12, 1995), aff’d, 103 F.3d 145 (10th Cir. 1996) (holding complaint offering no facts to support legal conclusion fails to give defendants fair notice). Case 6:25-cv-01152-JWB-GEB Document 8 Filed 05/01/26 Page 9 of 9
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