Cahail v. Social Security Administration, Commissioner of et al

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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
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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.
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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)).
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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)).
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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).
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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.
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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).
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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).
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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).
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