Mims v. US Dept. of Health & Human Svcs, et al
Filing
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ORDER Directing USMS Service of Process re Summons, 1 Complaint, and this Order upon Defendant HHS and on the required government officers and agencies in accordance with Federal Rule of Civil Procedure 4(i). Signed by Magistrate Judge Brian K. Epps on 10/23/2024. (Attachments: # 1 U.S. Dept of HHS - USM Form, # 2 Attorney General - USM Form, and # 3 Civil Process Clerk - USM Form.) (jlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOHNNA JOWANNA MIMS,
Plaintiff,
v.
US DEPARTMENT OF HEALTH &
HUMAN SVCS; OFFICE OF GOV’T
INFORMATION SVCS; ARIANNE
PERKINS; RUHMA SUFIAN; and
PAULA FORMOSO,
Defendants.
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CV 124-167
ORDER
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Plaintiff commenced the above-captioned case pro se and is proceeding in forma pauperis
(“IFP”). Having considered Plaintiff’s affidavit of poverty, the Court GRANTS her request to
proceed IFP. (Doc. no. 2.) If in the future, however, it appears that Plaintiff’s financial situation
has improved, the Court may act on its own initiative to require either to pay either the entire filing
fee or an appropriately determined partial filing fee.
Because she is proceeding IFP, Plaintiff’s complaint must be screened to protect potential
Defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Pleadings drafted by pro
se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but the
Court may dismiss a complaint, or any part thereof, that is frivolous or malicious or that fails to
state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) & (ii).
I.
SCREENING OF THE COMPLAINT
A.
BACKGROUND
Plaintiff names as Defendants: (1) U.S. Department of Health and Human Services, (2)
Office of Government Information Services, (3) Arianne Perkins, (4) Ruhma Sufian, and (5) Paula
Formoso. (See generally doc. no. 1.) Taking all of Plaintiff’s factual allegations as true, as the
Court must for purposes of the present screening, the facts are as follows.
On July 7, 2021, Plaintiff submitted a complaint to the U.S. Department of Health and
Human Services (“HHS”), Office of Civil Rights. (Id. at 5.) Plaintiff’s complaint alleged the
Jenkins County Department of Family & Children Services racially discriminated against her in
the foster care placement of her nephew by preferring Caucasian foster parents over Plaintiff, an
African American. (Id. at 11.) After reviewing Plaintiff’s complaint, the HHS Office of Civil
Rights closed the case without further investigation on December 12, 2022. (Id. at 11-12.)
Plaintiff submitted a Freedom of Information Act (“FOIA”) request for the “entire
investigative [Office of Civil Rights] file” from the HHS headquarters on December 18, 2022. (Id.
at 5, 14.) On December 19, 2022, Plaintiff received an email from Defendant Ruhma Sufian with
an acknowledgment letter of the FOIA request. (Id.) The acknowledgment letter, signed by
Defendant Arianne Perkins, informed Plaintiff “because [Plaintiff] seek[s] records which require
a search in another office, ‘unusual circumstances’ apply,” which automatically extended the
agency’s response time to Plaintiff’s request by an additional ten days. (Id. at 14 (citing 5 U.S.C.
§ 552(a)(6)(B)(i)-(iii)).) The letter further stated the HHS Office of the Secretary “estimate[d]
needing more than 10 additional days to respond to [Plaintiff’s] request” based on the complexity
of the search and corresponding records. (Id.) The letter assigned Plaintiff’s request to the
“complex track” and offered Plaintiff an opportunity to narrow her request. (Id.) Finally, the letter
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informed Plaintiff she had the right to seek dispute resolution services from the HHS FOIA/PA
Public Liaison and/or the Office of Government Information Services (“OGIS”). (Id. at 14-15.)
Instead of narrowing her request, Plaintiff decided to wait for responsive records. (Id. at
13.) On January 26, 2023, Plaintiff emailed Defendant Sufian to inquire about the status of her
FOIA request. (Id. at 5, 16.) Defendant Sufian’s reply stated the FOIA Office of the Secretary
had “identified the offices who are likely to maintain the records requested” but that they were
“still waiting for responsive records.” (Id. at 16.) The reply noted Plaintiff’s request status would
be updated on the Public Access Link website once the office received responsive records. (Id.)
Plaintiff sent additional follow-up emails to Defendant Sufian on March 22, March 30, and June
23, 2023, but received no response. (Id. at 6, 17, 18.)
Due to Defendant Sufian’s lack of response, Plaintiff sent a complaint email on June 25,
2023, to the email addresses for the HHS FOIA Public Liaison and OGIS, which the FOIA request
acknowledgment letter listed as dispute resolution contacts. (Id. at 6, 19.) Plaintiff also included
individual HHS employees in this email and included a PDF attachment chronicling her prior
attempts at communication. (Id. at 19.) Plaintiff received an automatic email reply from the OGIS,
stating OGIS staff “will review [Plaintiff’s] submission as soon as possible and will respond as
appropriate.” (Id.) Plaintiff enabled read receipts for this complaint email, which demonstrated
nearly all email recipients read the email and opened the PDF attachment. 1 (Id. at 21-22.) In July
2023, Plaintiff sent a follow-up email about her complaint to the HHS FOIA Public Liaison and
OGIS and again received no response. (Id. at 6, 20.)
One email recipient, Defendant Perkins, read the email but did not open the PDF attachment. (Doc. no.
1, pp. 21-22.)
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On February 7, 2024, Plaintiff attempted to retrieve the requested documents from Superior
Court of Jenkins County Chief Judge Peed, but he denied her request. (Id. at 6.) Accordingly, on
September 17, 2024, Plaintiff filed this lawsuit.
Liberally construing Plaintiff’s allegations in her favor and granting her the benefit of all
reasonable inferences to be derived from the facts alleged, the Court finds Plaintiff has arguably
stated a FOIA claim against Defendant HHS. See Lee-Lewis v. Kerry, 2:13-CV-80, 2016 WL
6647937, *9-10 (S.D. Ga. Nov. 8, 2016) (concluding plaintiffs stated FOIA claim because
defendants did not respond to FOIA request “beyond issuing a receipt acknowledgment letter” and
agency’s “40-month delay is far beyond FOIA’s deadlines”); Lodge v. Berry, 1:10-CV-0686, 2010
WL 11493788, at *4-5 (N.D. Ga. Mar. 9, 2010) (construing “somewhat unclear” complaint to state
FOIA claim where plaintiff “allege[d] he requested documents from the ‘Whitehouse,’ who
directed the Office of Personnel Management to turn over the documents to Plaintiff and the
director refused”), adopted by 2010 WL 11493750 (N.D. Ga. Apr. 9, 2010); Taylor v. Appleton,
30 F.3d 1365, 1368 (11th Cir. 1994) (explaining “requirements for constructive exhaustion
arguably were met” to allow suit where agency acknowledged receipt of plaintiff’s FOIA request
but failed to respond within statutory time frame). Accordingly, process shall issue as to Defendant
HHS. In a companion Report and Recommendation, the Court recommends dismissal of
Plaintiff’s claims against Defendants Sufian, Perkins, Formoso, and OGIS.
II.
INSTRUCTIONS
IT IS HEREBY ORDERED that service of process shall be effected on Defendant HHS.
The United States Marshal shall effect service of the Complaint, (doc. no. 1), on the required
government officers and agencies in accordance with Federal Rule of Civil Procedure 4(i) and
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shall include a copy of this Order with the summons and Complaint. Service must be effected
within ninety days of the date of this Order. See Fed. R. Civ. P. 4(m).
IT IS FURTHER ORDERED Plaintiff shall serve upon the Defendant, or upon its
defense attorney(s) if appearance has been entered by counsel, a copy of every further pleading or
other document submitted to the Court. Plaintiff shall include with the papers to be filed a
certificate stating the date a true and correct copy of any document was mailed to the defendant or
its counsel. Fed. R. Civ. P. 5; Loc. R. 5.1. Every pleading shall contain a caption setting forth the
name of the court, the title of the action, and the file number. Fed. R. Civ. P. 10(a). Any paper
received by a District Judge or Magistrate Judge that has not been properly filed with the Clerk of
Court or that fails to include a caption or certificate of service will be returned.
It is Plaintiff’s duty to cooperate fully in any discovery that may be initiated by the
defendant. Upon being given at least five days notice of the scheduled deposition date, Plaintiff
shall appear and permit her deposition to be taken and shall answer, under oath and solemn
affirmation, any question that seeks information relevant to the subject matter of the pending
action. Failing to answer questions at the deposition or giving evasive or incomplete responses to
questions will not be tolerated and may subject Plaintiff to severe sanctions, including dismissal
of this case. The defendant shall ensure Plaintiff’s deposition and any other depositions in the case
are taken within the 140-day discovery period allowed by this Court’s Local Rules.
While this action is pending, Plaintiff shall immediately inform this Court and opposing
counsel of any change of address. Failure to do so will result in dismissal of this case.
Plaintiff must pursue this case; if Plaintiff does not press the case forward, the Court may
dismiss it for want of prosecution. Fed. R. Civ. P. 41; Loc. R. 41.1. If Plaintiff wishes to obtain
facts and information about the case from the defendant, Plaintiff must initiate discovery. See
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generally Fed. R. Civ. P. 26 through 37 (containing the rules governing discovery and providing
for the basic methods of discovery). Plaintiff should begin discovery promptly and complete it
within four months after the filing of the first answer of a defendant named in the complaint
screened herein.
Interrogatories are a practical method of discovery for pro se litigants. See Fed. R. Civ. P.
33. Interrogatories shall not contain more than twenty-five questions. Id. Plaintiff must have the
Court’s permission to propound more than one set of interrogatories to a party. Discovery
materials should not be filed routinely with the Clerk of the Court; exceptions include when the
Court directs filing; when a party needs such materials in connection with a motion or response,
and then only to the extent necessary; and when needed for use at trial. If Plaintiff wishes to file a
motion to compel pursuant to Fed. R. Civ. P. 37, she should first contact the attorney for Defendant
and try to work out the problem; if Plaintiff proceeds with the motion to compel, she should also
file a statement certifying that he has contacted opposing counsel in a good faith effort to resolve
any dispute about discovery. Loc. R. 26.5.
Plaintiff must maintain a set of records for the case. If papers are lost and new copies are
required, these may be obtained from the Clerk of the Court at the standard cost of fifty cents per
page.
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve
his response to the motion within fourteen days of its service. “Failure to respond shall indicate
that there is no opposition to a motion.” Loc. R. 7.5. Therefore, if Plaintiff fails to respond to a
motion to dismiss, the Court will assume that there is no opposition to the defendant’s motion and
grant the dismissal.
A response to a motion for summary judgment must be filed within twenty-one days after
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service of the motion. Loc. R. 7.5, 56.1. A failure to respond shall indicate that there is no
opposition to the motion. Loc. R. 7.5. Furthermore, each material fact set forth in a defendant’s
statement of material facts will be deemed admitted unless specifically controverted by an
opposition statement. Should a defendant file a motion for summary judgment, Plaintiff is advised
that she will have the burden of establishing the existence of a genuine issue as to any material fact
in this case. That burden cannot be carried by reliance on the conclusory allegations contained
within the complaint. Should a defendant’s motion for summary judgment be supported by
affidavit, Plaintiff must file counter-affidavits if she desires to contest the defendant’s statement of
the facts. Should Plaintiff fail to file opposing affidavits setting forth specific facts showing that
there is a genuine issue for trial, the consequences are these: any factual assertions made in the
defendant’s affidavits will be accepted as true and summary judgment will be entered against
Plaintiff pursuant to Fed. R. Civ. P. 56.
SO ORDERED this 23rd day of October, 2024, at Augusta, Georgia.
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