United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
GORDON P. GALLAGHER, Magistrate Judge.
Plaintiff, Joshua Lamont Sutton, is in the custody of the Colorado Department of Corrections (CDOC) at the Centennial Correctional Facility in Canón City, Colorado. Mr. Sutton has filed, pro se, a Prisoner Complaint. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be ordered to file an Amended Complaint if he wishes to pursue his claims in this action.
In the Complaint, Mr. Sutton alleges that he has a long history of extreme mental illness. He further alleges that his requests for benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, have been denied. (ECF No. 1, at 2-4). According to Plaintiff:
After my release from prison, on October 16, 2011, through August 31, 2012, defendant United States, defendant Social Security Administration, or defendant Colorado Department of Corrections, or all of the defendants wilfully or recklessly or negligently denied or cause me to be denied social security income or other program benefits.
(Id. at 4). Mr. Sutton's most recent claim for benefits was submitted to the Social Security Administration (SSA) on February 1, 2013. Plaintiff asserts that "the [SSA] has not finally denied my claim in writing or otherwise responded." (Id. at 4). Plaintiff purports to seek judicial review of the SSA's failure to act on his claim(s) for disability benefits, pursuant to 42 U.S.C. § 405(g). He also asserts a claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq. For relief, Mr. Sutton requests social security benefits and damages.
II. Sufficiency of Claims
A. Judicial Review pursuant to 42 U.S.C. § 405(g)
Construing the Complaint liberally, Plaintiff seeks judicial review of past decisions by the Commissioner of Social Security to deny him benefits and/or the failure of the Commissioner to act on his 2013 claim for benefits, pursuant to 42 U.S.C. § 405(g). The statute provides in pertinent part:
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. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.
28 U.S.C. 405(g).
Mr. Sutton alleges that he filed claims for social security benefits before 2013, which were denied. He does not state whether he received a hearing before an ALJ on any of those claims, appealed any ALJ decision to the SSA Appeals Council, or filed an action under § 405(g) for judicial review within 60 days of receiving a final decision. The Court observes that the sixty-day time period under § 405(g) is a statute of limitation rather than a jurisdictional bar, see Mathews v. Eldridge, 424 U.S. 319, 328 n. 9 (1976), and is subject to equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 480 (1986).
It is not clear whether Mr. Sutton intends to seek judicial review of claims for social security benefits that were denied before 2013. Plaintiff should clarify his intent in the ...