Opinion
CIVIL ACTION NO. 02-1204, SECTION "I" (4)
December 11, 2002
REPORT AND RECOMMENDATION
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an Evidentiary Hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to Title 28 U.S.C. § 636 (b)(1)(B) and (C) and §§ 1915(e)(2) and 1915A, and as applicable, Title 42 U.S.C. § 1997e(c)(1) and(2). Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing.
Also before the Court is a Motion to Dismiss (Rec. Doc. No. 16) filed pursuant to Rule 12(b)(6) by Barbara Spell seeking the application of the doctrine of Qualified Immunity. Alternatively, Spell seeks a More Definite Statement pursuant to Rule 12(e).
I. Factual Summary
The plaintiff, Steven Gallagher is an inmate presently confined in the Washington Correctional Institute in Angie, Louisiana. Gallagher filed this pro se complaint pursuant to Title 42 U.S.C. § 1983 seeking damages against Barbara Spell of the Social Security Department in Bogalusa, Louisiana for violation of his constitutional rights arising out of the denial of certain Social Security benefits. Gallagher contends that he filed claims for Social Security benefits on November 1, 1994 and November 11, 1994. He alleges that his request for benefits was denied and he requested a hearing before Administrative Law Judge Mark Dawson. On March 8, 2001, Judge Dawson awarded Supplemental Security Income ("SSI") benefits to the plaintiff retroactive to the date the claim was filed. According to the plaintiff, the Administrative Law Judge ("ALJ") ordered the Department of Social Security to make arrangements to provide the retroactive payments.
As a result, on June 13, 2001, Barbara Spell interviewed the plaintiff while he was incarcerated at Washington Correctional Institute. Gallagher concedes that he received ten-thousand nine-hundred twenty-two dollars and eighty-seven cents ($10,922.87) in benefits.
He thereafter forwarded correspondence to Spell and inquired into the remaining benefits, namely, retirement benefits, survivors benefits, and disability benefits, which he thought were due based on her report. Gallagher contends that Spell reported earlier that he was due seven-thousand two-hundred dollars ($7,200.00) for retirement, survivors, and disability insurance benefits. He alleges that he was advised by Spell's supervisor that an error was made regarding the finding that he was due retirement, survivors, and disability insurance benefits and that no further compensation would be forthcoming.
Gallagher also contends that he is entitled to cost of living adjustments for the three-year period he waited on the supplemental security income benefits. Gallagher expressly names Spell as a defendant but does not indicate whether she is being sued in her individual or official capacity. Gallagher further names John Doe, the supervisor for the Department of Social Security at the Bogalusa office who responded to his follow-up letter.
When a § 1983 plaintiff does not specify in the complaint whether the defendant is named in their official or individual capacity, by operation of law, it is presumed that the defendant is named in their official capacity. Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000); Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989).
Gallagher alleges further that the defendants violated his Fifth and Fourteenth Amendment Rights as these amendments guarantee fair procedures and substantive rights for the protection of an individual's property from an unfair taking or interference. (Rec. Doc. No. 2, ¶ 1, Constitutional Violations). Gallagher also alleges that the defendants have denied him Equal Protection of the laws in failing to redress wrongs and errors committed against his pursuit of enjoyment of personal liberty. (Rec. Doc. No. 2, ¶ 2, Constitutional Violations). Gallagher further alleges a violation of the Eighth Amendment which prohibits cruel and unusual punishment.
Finally, the plaintiff seeks redress pursuant to the Americans with Disabilities Act because it prohibits discrimination against the disabled, which he claims is the basis for his entitlement to Social Security benefits. (Rec. Doc. No. 2, ¶ 3, Constitutional Violations). Gallagher prays for redress in the form of compensatory, punitive, and special damages, and attorneys fees.
II. Standard of Review A. Frivolous Standard of Review
Title 28 U.S.C. § 1915A requires the Court to screen a prisoner's pro se complaint for alleged civil rights violation as soon as practicable after docketing, regardless of whether it has also been filed in forma pauperis. 28 U.S.C. § 1915A(a); Ruiz v. United States, 160 F.3d 273 (5th Cir. 1998); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Such complaints must be dismissed upon review if they are frivolous or fail to state a claim, or if they seek monetary relief from a defendant who is immune from such relief Title 28 U.S.C. § 1915A(b)(1).
The standard for failure to state a claim in this context is the same as the Fed.R.Civ.P. 12(b)(6) standard set forth infra.
The Court has broad discretion in determining the frivolous nature of the complaint. See Cay v. Estelle, 789 F.2d 318 (5th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). A claim is frivolous only when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A claim lacks an arguable basis in law if it is based on an undisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist. Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999). It lacks an arguable factual basis only if the facts alleged are "clearly baseless," a category encompassing fanciful, fantastic, and delusional allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke, 490 U.S. at 327-28.
Therefore, the Court must determine whether the plaintiff's claims are based on an undisputably meritless legal theory or clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); see Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
In addition to the initial review required under Title 28 U.S.C. § 1915A, the district court may also dismiss an action on its own motion under Rule 12(b)(6) "as long as the procedure employed is fair." Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (quotation and citation omitted). Thus, before a sua sponte dismissal, the court should provide the pro se plaintiff with notice and an opportunity to amend, unless the court finds that the plaintiff has alleged his best case. Id. (citing Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986), Moawad v. Childs, 673 F.2d 850, 851-52 (5th Cir. 1982)). However, the court need not seek further factual development and should dismiss the case with prejudice when the complaint alleges the plaintiffs best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999) (citing Jacquez, 801 F.2d at 792); Bazrowx, 136 F.3d at 1054.
B. Rule 12(b)(6) Standard of Review
When considering whether a complaint states a claim for which relief can be granted under Fed.R.Civ.P. 12(b)(6), the Court must take the factual allegations of the complaint as true and resolve any ambiguities regarding the sufficiency of the claim in the plaintiffs favor. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991).
The complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998); Home Capital Collateral, Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir. 1996); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284-85 (5th Cir. 1993). Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Tuchman v. DSC Collins v. Morgan Stanley Dean Witter, 14 F.3d 1061, 1067 (5th Cir. 1994).
III. Analysis
The plaintiff disputes the agency's determination that it erred when it concluded he was due retirement, survivor and disability insurance benefits. He further contends that he is entitled to cost of living adjustments for the three year period he waited on the Supplemental Security Income Benefits which he was due and which were ultimately awarded to him.
He also contends that he submitted his request for Cost of Living Adjustments to the Secretary of the Social Security Administration ("SSA") through Spell but heard nothing. Additionally, Gallagher does not allege that he presented these issues directly to the Secretary or to the ALJ for review.
Although prepared on a form for § 1983 complaints, Gallagher's claim suggests that he is seeking review of an SSA decision. Judicial review of a SSA ruling is governed by Title 42 U.S.C. § 405 (g) which requires an Social Security Income ("SSI") claimant like Gallagher to obtain a final judgment from the Secretary before seeking judicial review. A final judgment consists of two elements: the presentment of a claim to the Secretary and the exhaustion of administrative remedies.
Thus, the two prerequisites for district courts to have jurisdiction over a claim are (1) the nonwaivable requirement that the claim for benefits was presented to the Secretary, and (2) the waivable requirement of exhaustion of administrative remedies. Heckler v. Day, 467 U.S. 104, 111 n. 14 (1984). The presentment requirement is jurisdictional and therefore cannot be waived by the Secretary or the courts. However, the exhaustion requirement is waivable by either the Secretary or the courts. Matthews v. Eldridge, 424 U.S. 319, 330 (1975).
Administrative remedies include a hearing by the Secretary, a de novo hearing before an ALJ, and an appeal to the SSA Appeals Council. See Title 42 U.S.C. § 421 (d); 20 C.F.R. § 404.900 (1995). If, however, the plaintiff's claim is collateral to the claim of benefits itself, exhaustion is not required. Bowen v. City of New York, 476 U.S. 467 (1986). A claim is collateral if it is not essentially a claim for benefits. Id. at 483.
A. Retirement. Survivors and Disability Insurance Benefits Claim
Plaintiff's initial claim challenging the denial of retirement, survivors and disability insurance benefits is in fact a claim challenging the agency's decision. Therefore, Gallagher is required to present this claim to the Secretary for determination. Gallagher has failed to do so and therefore has failed to exhaust the available administrative remedies to determine whether the failure to provide the retirement, survivors, and disability insurance benefits was an error based on Spell's report. The Court, therefore, finds that Gallagher has no legal basis at this time to pursue a claim pursuant to § 405(g) against Spell or her supervisor arising out of the decision that the award of retirement, survivors, and disability insurance benefits was in error. The claim is based on an undisputably meritless legal theory and is therefore frivolous.
B. Cost of Living Adjustments
The second claim also challenges the plaintiffs entitlement to benefits. Gallagher contends that he is entitled to cost of living adjustments ("COLA") because he had to wait for three years before he received the administrative decision awarding him Supplemental Security Income Benefits. Gallagher challenges the agency's non-responsiveness to his request for cost of living adjustments to the supplemental income award.
20 C.F.R. § 416.405 provides for the inclusion of cost of living adjustments on an unrounded yearly SSI benefit amount by the same percentage the Title II benefits are being increased by the Consumer Price Index or if greater, the percentage they would be increased if the rise in the Consumer Price Index were currently the basis for the Title II increase. When adjustment of disability insurance occurs, Supplemental Security Income is adjusted by the same Cost of Living Adjustment Percentage as the consumer price index or the average wage earnings index, if they rise above three percent. 20 C.F.R. § 404.273.
20 C.F.R. § 404.273 provides: We make automatic cost-of-living increases if the applicable index, either the CPI or the AWI, rises by 3.0 percent or more over a specified measuring period (see the rules in § 404.274). If the cost-of-living increase is to be based on an increase of 3.0 percent or more in the CPI, the increase becomes effective in December of the year in which the measuring period ends. If the increase is to be based on an increase of 3.0 percent or more in the AWI, the increase becomes effective in December of the year after the year in which the measuring period ends.
In the instant case, it appears that Gallagher was first denied benefits by the SSA's initial determination. However, upon pursuing review by an ALJ, he was awarded SSI. Spell, on behalf of the agency, was apparently charged with determining the amount of the SSI award. Gallagher's challenge focuses on whether that amount includes a COLA.
The regulations provide that Gallagher may request a revised determination in two areas. When an aggrieved person seeks reconsideration of an initial determination, he need only file a written request at any one of the agency's offices within 60 days after receipt of the initial determination. 20 C.F.R. § 416.1409. The statute does not define "initial determination." In the instant case, it does not appear that Spell's calculation was "initial" since it was done after the ALJ's decision was issued in the administrative process.
In that regard, the regulations provide that, if dissatisfied with a determination or decision made in the administrative review process, the aggrieved person may "ask" that a final determination or decision be reopened for revision. 20 C.F.R. § 416.1487. This reopening for revision may be requested (a) within twelve months of the initial determination, (b) within two years, if good cause such as a clerical error or obvious error is shown, or (c) at any time, if the determination was obtained by fraud or similar fault. 20 C.F.R. § 416.1488. The term "good cause" is defined in Section 416.1489(1) and (2), which provides that good cause to reopen a determination exists if there is a clerical error or where there is an obvious error.
The one term which is not defined by the statute is "ask;" that is, the regulation does not indicate how an aggrieved party is supposed to ask for the reopening and revision. Prior to the administrative process, during the initial determination phase, the aggrieved person need only write to any SSA office. In the instant case, Gallagher wrote to Spell and her supervisor at the Bogalusa office. His letters, although difficult to understand, appear to request an explanation of the calculation so that he could ask for revision if the COLA was not included. Assuming his allegations are true, he did not receive a response or any indication of the agency's decision to reopen or revise his benefits.
Section 405(g) confers upon a party who has not received a favorable final decision from the Commissioner of Social Security the ability to come into federal district court for judicial review of the denial of social security disability insurance benefits. Subsection (g), however, does not authorize a private right of action against the State for failure to comply with provisions of the Social Security Act.
In the instant case, for the reasons set forth above, Gallagher is presumed by law to have named Spell in her official capacity. Therefore, to the extent that Spell is a State employee administering the federal program (a fact not clarified by the plaintiff or the defendants), the claim pursuant to § 405(g) is frivolous. Spell as a State agent would be an improper defendant under the strictures of § 405 since no cause of action exists against her in her official capacity or the State of Louisiana itself pursuant to § 405(g).
To the extent that Spell is a federal employee or agent, § 405(g) is the only way to seek judicial enforcement of the rights under Title II of the SSA. See Weinberger v. Salfi, 422 U.S. 749, 756-96 (1975). Therefore, if Spell is a federal defendant, § 405(g) would permit the filing of this claim provided that it states a claim for relief and is subject to the exhaustion requirement.
However, a close review of Gallagher's complaint indicates that he has not alleged that he has not received the COLA adjustments as required by the regulations to qualify for judicial review. Instead, Gallagher simply alleges that he requested verification that he received the COLA adjustments but received no response. He has not alleged that he was actually denied a COLA, he merely contends that he can not be sure that he received a COLA.
In addition, Gallagher seeks monetary damages against Spell and her supervisor. This type of relief is not available under the Social Security Act and regulations. Instead, he would only be entitled to enforcement of the regulations, which would allow him to benefit from the review process. Consequently, the Court finds that Gallagher's claims for increase of his benefits and monetary damages under § 405(g), if any, are frivolous and otherwise fail to state a claim for which relief may be granted.
C. § 1983 Claims
Finally, the Court must consider Gallagher's claims under Title 42 U.S.C. § 1983 since the Court must construe this pro se complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and because the complaint is on the form reserved for suits filed pursuant to § 1983. Gallagher generally alleges that the defendants violated his Fifth and Fourteenth Amendment Rights as these amendments guarantee fair procedures and substantive rights for the protection of an individual's property from an unfair taking or interference. (Rec. Doc. No. 2, Complaint, ¶ 1, Constitutional Violations). Gallagher also alleges that the defendants have denied him Equal Protection of the laws because they failed to redress wrongs and errors committed in pursuit of his enjoyment of personal liberty. (Rec. Doc. No. 2, Complaint, ¶ 2, Constitutional Violations). Finally, the plaintiff seeks redress pursuant to the Americans with Disabilities Act because it prohibits discrimination against the disabled. (Rec. Doc. No. 2, Complaint, ¶ 3, Constitutional Violations). Therefore, jurisdiction would not be based on the Social Security Act alone, but also under § 1983 for violation of the federal constitution.
Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his constitutional rights. Title 42 U.S.C. § 1983. A plaintiff must prove both the constitutional violation and that the action was taken under color of state law. Polk County v. Dodson, 454 U.S. 312 (1981); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). "A person acts under color of state law only when exercising power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir. 1984) ( quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
The term color of state law has been treated the same as the state action requirement of the 14th Amendment. The relevant inquiry focuses not on what law is being implemented but rather whether the authority of the state was exerted to enforce the law. Sorenson v. Concannon, 893 F. Supp. 1469, 1482-83 (D. Oreg. 1994).
When a § 1983 plaintiff does not specify in the complaint whether the defendant is named in his official or individual capacity, by operation of law, it is presumed that the defendant is named in his official capacity. Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000); Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989). Thus, if Spell, and her supervisor, are employed by the State of Louisiana, they are not persons for purposes of suit under § 1983 in their official capacities. Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
Furthermore, the Eleventh Amendment forbids federal courts from entertaining a suit for monetary damages brought by a citizen against his own State or its agents. Pennhurst State School v. Halderman, 465 U.S. 89, 98 (1984); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 185-86 (5th Cir. 1986). Suits against state officers and employees sued in their official capacity are effectively suits against the state itself. Hafer v. Melo, 502 U.S. 21, 22 (1991).
A state may expressly waive this Eleventh Amendment sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974) (holding that a state's consent to suit against it in federal court must be expressed "unequivocally"); Welch v. Department of Highways, 780 F.2d 1268, 1271-73 (5th Cir. 1986). However, the State of Louisiana has not done so. To the contrary, La. Rev. Stat. Ann. § 13:5106(A) provides that "no suit against the state . . . shall be instituted in any court other than a Louisiana state court."
Thus, Gallagher's § 1983, claims against Spell and her supervisor as State employees in their official capacities would be barred by the Eleventh Amendment. The claims are therefore frivolous.
A similar fate is met if Spell and her supervisor are federal employees or agents. A petitioner may maintain a claim against a federal employee accused of violating his federal constitutional rights. Such a claim is generally referred to as a Bivens claim. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971); see also Witherspoon v. White, 111 F.3d 399, 400 n. 1 (5th Cir. 1997) (citing Stephenson v. Reno, 28 F.3d 26, 26 n. 1 (5th Cir. 1994)).
A Bivens claim is available only against government officers in theirindividual capacities in order to deter future civil rights violations by such individuals. Williams v. U.S. Dept. of Agriculture, 815 F.2d 368, 380 (5th Cir. 1987). However, the Supreme Court has held that there can be no Bivens cause of action against the United States Government, federal agencies, or government officers in their official capacities because the deterrent effect on the individual would be lost. FDIC v. Meyer, 510 U.S. 471, 484-486 (1994).
For this reason, Gallagher's Bivens claims against Spell and her supervisor in their official capacities are based upon an undisputably meritless legal theory and should be dismissed as frivolous.
D. The Americans with Disabilities Act Claim
Gallagher generally alleges a violation of the Americans with Disabilities Act ("ADA"). He does not however allege a particular disability or that any alleged discrimination was intentional or based on a disability.
The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." See Title 42 U.S.C. § 12102 (2). Major life activities "include functions such as caring for one's self performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998) (quotations omitted). Thus, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." See Title 42 U.S.C. § 12132.
While the court is authorized to hear constitutional claims, the mere allegation of a claim is not sufficient. Rather a plaintiff must also allege facts in support of his constitutional claim. Gearhar v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (per curiam). In this case, Gallagher has not alleged any facts to support his contention that the defendants violated his rights to be free from an identifiable disability. As a result, the claim arising out of the alleged violation of the provisions of the ADA should be dismissed as frivolous and/or for failure to state a claim for which relief can be granted.
In the instant case against John Doe, the Supervisor of the Department of Social Security, Gallagher does not assert any specific action taken which could constitute a civil rights violation. The only allegation against the supervisor is that the plaintiff submitted a formal written complaint about Spell but did not receive a response. (Rec. Doc. No. 2, Complaint, ¶ 3). This allegation of inaction is insufficient to bring John Doe out from under the protection of sovereign immunity. The claims against the supervisor are frivolous.
The plaintiff further alleges that Spell, an administrative employee in the Bogalusa office of the Social Security Administration, refused to respond to his inquiry regarding whether the claim included a COLA adjustment. If Spell is a state employee charged with administering the federal Social Security Administration program in the Bogalusa office then she would be immune from being sued in her official capacity by the plaintiff. Therefore, the plaintiffs official capacity claim against Spell is frivolous to the extent that Spell is a state employee.
E. Claim for Attorneys Fees (Title 42 U.S.C. § 1988)
Gallagher also seeks to recover attorney's fees. Although he has not expressly named the legal authority for his request, Title 42 U.S.C. § 1988 provides for the recovery of attorney's fees to a prevailing party in a § 1983 action.
Section 1988 states, in relevant part, that "[i]n any action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Title 42 U.S.C. § 1988(b). By its terms, § 1988 is not a private right of action, but instead authorizes the trial court to order an unsuccessful litigant to pay to the prevailing party reasonable attorney's fees. Venegas v. Mitchell, 495 U.S. 82, 86-87 (1990).
Section 1988 is the attorney fee enabling statute which is only triggered in favor of Gallagher if he is ultimately a prevailing party and is represented by counsel. In this circuit, a pro se litigant may not be entitled to an award of attorney fees under Title 42 U.S.C. § 1988. Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir. 1981). Therefore, the § 1988 claim seeking the recovery of attorneys fees should also be dismissed.
F. Defendants' Motion to Dismiss or For More Definite Statement
The defendant, Spell, filed a Motion to Dismiss (Rec. Doc. No. 16) seeking dismissal of the claims of the plaintiff on the grounds that she is qualifiedly immune from individual liability. Gallagher opposes the Motion contending that the doctrine is inapplicable because she should have known or knew that they committed an error. (Rec. Doc. No. 18, Opposition to Motion to Dismiss at p. 4).
As noted above, by operation of law, Gallagher's claims against Spell are in her official capacity. Qualified immunity shields government officials from individual liability for performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532-33 (5th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because Gallagher has not named the defendant in her individual capacity the Motion should be denied as moot.
IV. Recommendation
It is therefore RECOMMENDED that the following claims urged by Steven Gallagher be dismissed with prejudice as frivolous and/or for failure to state a claim for which relief can be granted pursuant to Title 28 U.S.C. § 1915 (e):
1. The claim pursuant to § 405(g) for retirement, survivor, and disability insurance benefits and for cost of living adjustments to the SSI award.
2. The § 1983 claims against Spell and her supervisor as state or federal employees in their official capacities.
3. The Americans with Disabilities Act claims.
4. The claim for recovery of attorneys fees.
IT IS FURTHER RECOMMENDED that the Defendant's Motion to Dismiss and/or for a More Definite Statement (Rec. Doc. No. 16) be DISMISSED as moot.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996).