United States District Court, D. New Jersey
August 3, 2005.
RALPH M. LEPISCOPO, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Defendant.
The opinion of the court was delivered by: MARY COOPER, District Judge
Plaintiff, Ralph M. Lepiscopo ("Lepiscopo"), a state prisoner
confined at New Jersey State Prison in Trenton, New Jersey, seeks
to bring this action in forma pauperis pursuant to
28 U.S.C. § 1361 for a writ of mandamus. Based on the affidavit of
indigence, the Court will allow Lepiscopo to proceed in forma
pauperis and will order the Clerk of the Court to file the
The Court must review the petition for a writ of mandamus, as
filed by Lepiscopo, pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A, to determine whether it should be dismissed as frivolous
or malicious, for failure to state a claim upon which relief may
be granted, or because it seeks monetary relief from a defendant
who is immune from such relief. The Court concludes that the
action should be dismissed for failure to state a claim. I. BACKGROUND
Lepiscopo brings this civil action under 28 U.S.C. § 1361 for a
writ of mandamus as against the defendant Social Security
Administration ("SSA"). The following factual allegations are
taken from the petition and are accepted as true for purposes of
Lepiscopo contends that he was born in Newark, New Jersey in
1940. He is currently incarcerated on state court convictions and
sentences imposed in New Mexico. Lepiscopo is not convicted of
any crime in the State of New Jersey. His 39-year sentence for
escape is being served in New Jersey State Prison pursuant to the
Interstate Corrections Compact. He claims he is eligible for
Social Security retirement benefits. (Compl., ¶ 1).
On October 26, 2002, Lepiscopo allegedly wrote to the SSA for
an application for retirement benefits, but received no response.
Lepiscopo claims that the SSA's denial of retirement benefits to
prisoners is unconstitutional. (Compl., ¶¶ 2, 4).
Lepiscopo seeks a declaratory judgment that the SSA's denial of
retirement benefits to prisoners is unconstitutional. He also
asks that the Court issue a writ of mandamus directing the SSA to
furnish him with an application for retirement benefits. (Compl.,
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act ("PLRA") requires a district
court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a
governmental employee or entity. The Court must identify
cognizable claims and to sua sponte dismiss any claim that is
frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) &
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
Court need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A complaint is frivolous if it "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a
complaint is "frivolous" is an objective one. Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim if it appears "`beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981). But where a complaint can be
remedied by an amendment, a district court may not dismiss the
complaint with prejudice, but must permit the amendment. Denton
v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker,
363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading
requirement that it contain short, plain statement of claim but
lacked sufficient detail to function as guide to discovery was
not required to be dismissed for failure to state a claim;
district court should permit a curative amendment before
dismissing a complaint, unless an amendment would be futile or
inequitable); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2));
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). III. ANALYSIS
Lepiscopo characterizes his action as a writ of mandamus under
28 U.S.C. § 1361, seeking a Court Order directing the SSA to
provide him with an application for retirement benefits. He also
asks that the Court declare unconstitutional the SSA's denial of
retirement benefits to prisoners.
Lepiscopo is not entitled to issuance of a writ of mandamus
under 28 U.S.C. § 1361. To be eligible for mandamus relief, a
petitioner must establish (1) he has a clear right to relief, (2)
the respondent's duty to perform the act in question is plainly
defined and peremptory, and (3) he has no other adequate remedy.
See Rios v. Ziglar, 398 F.3d 1201 (10th Cir. 2005). See
also Cheney v. U.S. Dist. Ct. for Dist. of Columbia,
124 S.Ct. 2576, 2593-94 (2004) ("Mandamus is an extraordinary remedy,
available to `a plaintiff only if . . . the defendant owes him a
clear, non-discretionary duty.'") (citing Heckler v. Ringer,
466 U.S. 602 (1984)). Lepiscopo can not establish any of these
Lepiscopo has no clear right to the relief sought. The Social
Security program bars payment of retirement benefits to
imprisoned felons. 42 U.S.C. § 402(x)(1). This statute is
constitutional as applied to prisoners. See Butler v. Apfel,
144 F.3d 622 (9th Cir. 1998); Graham v. Bowen, 648 F.Supp. 298
(S.D. Tex. 1986); Clary v. Bowen, 637 F.Supp. 1186 (W.D.N.C.
1986). Indeed, the Third Circuit has noted that Social Security participation is a non-contractual benefit under a social welfare
program. Washington v. HHS, 718 F.2d 608 (3d Cir. 1983).
Congress can fix the levels of benefits and set the conditions
under which they are to be paid. Id. at 610.
The SSA is under no affirmative, peremptory duty to provide
Lepiscopo, a convicted felon and prisoner, with an application
for retirement benefits while he is currently incarcerated since
such benefits are statutorily barred. Finally, mandamus relief is
unavailable under the third prong because any claim Lepiscopo may
have for retirement benefits in the future can be pursued with
the SSA. This Court lacks jurisdiction to grant relief to
Lepiscopo because such administrative remedies have not been
Therefore, because Lepiscopo has failed to establish any basis
for mandamus relief, this action for a writ of mandamus is
dismissed for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
For the reasons set forth above, this civil action will be
dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1), for failure to state a claim. An appropriate order