GROSS v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 49

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 45 Report and Recommendations for 33 Motion to Dismiss or in the alternative Motion for Summary Judgment filed by JOHN GRIFFIN. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT GROSS,
PLAINTIFF
v.
JOHN GRIFFIN,

ET AL.,

DEFENDANTS

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CIVIL NO. 1:10CV328-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On August 3, 2011, the United States Magistrate Judge filed with the
court, with copies to counsel, her Recommended Decision on John Griffin’s
Motion to Dismiss/Summary Judgment and Recommendation that the Action
Be Dismissed Against “The Unknown Person as Personal Representative of the
Estate of James Russell” for Failure to Make Service. Recommended Dec. on
John Griffin’s Mot. to Dismiss/Summ. J. (Docket Item 45).

On August 22,

2011, the plaintiff filed an objection to the Recommended Decision. Pl. Robert
Gross’ Objection to the Recommended Dec. (Docket Item 46).
I have reviewed and considered the Recommended Decision, together
with the entire record; I have made a de novo determination of all matters
adjudicated

by

the

Recommended

Decision;

and

I

concur

with

the

recommendations of the United States Magistrate Judge for the reasons set

forth in the Recommended Decision, and determine that no further proceeding
is necessary.
I make these observations. Here, the Magistrate Judge did not convert a
motion to dismiss into a motion for summary judgment. The defendant filed
his motion in the alternative, and the plaintiff responded to both alternatives.
Thus, there is no problem with “notice,” nor any obligation for the Magistrate
Judge to tell the plaintiff first which version of the motion she would rule upon
before making the ruling. See Fed. R. Civ. P. 12(d). I agree with the Magistrate
Judge that the plaintiff has not shown how discovery would help him.

The

plaintiff’s dilemma is that two of the defendants whom he wants to sue for
discrimination have died, and he has left only this defendant, an administrator,
not the primary decisionmaker. Moreover, the plaintiff has no statutory claim,
but only constitutional claims. He must therefore proceed under the authority
of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the
Magistrate Judge correctly held that the nature of his complaint against this
defendant is in the nature of supervisory liability and that on that basis he is
unable to succeed.1

1

I note the plaintiff’s objection that
In th[e] Complaint, Mr. Gross alleges several contacts with Mr.
Griffin concerning his complaints that, if admitted, would form
the nexus of individual knowledge coupled with Mr. Griffin’s
oversight responsibility to create individual liability.
The Plaintiff does not argue that Mr. Griffin has “supervisory
liability,” rather Plaintiff’s position is that as the individual
charged with oversight of compliance with the SSA’s rules and
regulations, Mr. Griffin had a personal responsibility to act when
he received notice that the rules and regulations were not being
followed.

(continued next page)

2

It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED. Judgment is GRANTED WITH PREJUDICE in favor of the
defendant John Griffin on the plaintiff’s claim against this defendant.
Furthermore, the plaintiff’s claims against the Estate of James Russell
and its representative are DISMISSED

WITHOUT PREJUDICE

because the plaintiff

has failed to achieve service as required under Fed. R. Civ. P. 4(m).
These two dispositions mark the closing of the case.
SO ORDERED.
DATED THIS 31ST DAY OF AUGUST, 2011
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

Pl. Robert Gross’ Objection to the Recommended Dec. at 8 n.2 (Docket Item 46). Nevertheless,
I agree with the Magistrate Judge that this supervisory “obligation” theory produces the same
result.
3