                                                    [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 11-13336                   MAY 10, 2012
                           Non-Argument Calendar               JOHN LEY
                         ________________________               CLERK


                  D.C. Docket No. 8:11-cv-01591-RAL-MAP



JAMES C. GIONFRIDDO, JR.,

                                                             Plaintiff-Appellant,

                                    versus

COMMISSIONER OF SOCIAL SECURITY,

                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                                (May 10, 2012)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     On April 8, 2011, James C. Gionfriddo Jr. received notice from the Social
Security Administration that it would not review the administrative law judge’s

decision to deny him social security benefits. He filed a pro se complaint in

federal district court on July 5, 2011,1 and asked to proceed in forma pauperis.

See 28 U.S.C. § 1915. The district court dismissed the complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim because it found that the complaint

had been filed twenty-two days too late. Gionfriddo appeals, proceeding pro se.

       We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003).

An applicant for social security benefits has sixty days from receiving notice of a

final decision denying his application to seek review of that decision by filing a

complaint in federal district court. See 42 U.S.C. § 405(g). That sixty-day time

limit is not jurisdictional but is instead an affirmative defense that can be waived.

See Shows v. Dep’t of Health & Human Servs., 740 F.2d 891, 891–92 (11th Cir.

1984).

       The district court should not have dismissed Gionfriddo’s complaint for

failure to state a claim based on its conclusion that the complaint was untimely

filed without hearing from the Commissioner, who may waive this affirmative


       1
         The complaint was dated July 5, 2011, but may not have been filed until July 15, 2011.
The district court gave Gionfriddo the benefit of the doubt because the difference between the
dates did not affect its analysis. We do the same for the same reason.

                                               2
defense. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir.

2010); see also Fed. R. Civ. P. 8(c). “Courts generally lack the ability to raise

affirmative defenses themselves.” Latimer, 601 F.3d at 1239.

      VACATED AND REMANDED.




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