Medlock v. Social Security Disability ( 2019 )

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ORLANDO M, § § Plaintiff, § § v. § Civil Action No. 3:18-CV-3326-L § ANDREW SAUL, Commissioner, Social § Security Administration, § § Defendant. § ORDER On December 13, 2019, United States Magistrate Judge Rebecca Rutherford entered Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 14), recommending that the court grant Defendant Andrew Saul’s, Commissioner of the Social Security Administration (“Defendant”), Motion to Dismiss (“Motion”) (Doc. 12); and dismiss with prejudice, as it was untimely, pro se Plaintiff Orlando M.’s (“Plaintiff”) action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social Security. Plaintiff did not file a response to Defendant’s Motion, and no objections to the Report were filed. Having reviewed the Motion, pleadings, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct and accepts them as those of the court. Accordingly, the court grants Defendant’s Motion to Dismiss (Doc. 12) and dismisses with prejudice this action, as it is time-barred pursuant to 42 U.S.C. § 405(g). The court prospectively certifies that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the court incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the magistrate judge’s Report, the court concludes that any appeal of this action would present no legal point of arguable merit and would therefore be frivolous. Howard v. King, 707 F.2d 215, 220 (Sth Cir. 1983). In the event of an appeal, Petitioner may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the clerk of the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5). It is so ordered this 31st day of December, 2019. United States District Judge Order — Page 2