Gray v. Montgomery County Public School et al

Filing 22

MEMORANDUM OPINION (c/m to Plaintiff 11/18/22 sat). Signed by Judge Deborah K. Chasanow on 11/18/2022. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:

LAVAUGHN M. GRAY

:

v.

:

Civil Action No. DKC 22-1263

:

MONTGOMERY COUNTY PUBLIC
SCHOOLS, et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution is the motion to
substitute and dismiss filed by the United States of America
(“United

States”)

on

behalf

of

Administration and “A. LJ. Judge.”

Defendants

Social

(ECF No. 15). 1

rules, no hearing being deemed necessary.

Security

The court now

Local Rule 105.6.

For

the following reasons, the motion will be granted.
Plaintiff LaVaughn M. Gray, proceeding pro se, filed a form
complaint in the District Court for Montgomery County, Case No.
06-01-0009899-2021, on January 8, 2019, naming Montgomery County
Public Schools as a defendant. (ECF No. 4).

The handwritten

explanation of the case in the original complaint states:
I am here to state my case against
Montgomery County School Board. I have worked
for Montgomery County School Board for over 17
years. I was hired August 23, 2002 at Julius
West Middle School for the cafeteria position
as a 10 month shift. Later on I became a part
Also pending is Defendants’ motion to file an exhibit from
the state court record under seal because it contains Plaintiff’s
medical records. (ECF No. 20). That motion is GRANTED.
1

time building service worker as a 12 month
shift.
As years increase I noticed around
2015 til now that my pay was steadily
decreasing, and no one had an explanation for
me when I asked. My promised pay was $20 an
hour, but as I received paycheck after
paycheck something was not adding up. age 53[illegible] Retirement.
She filed an amended form complaint in the same court on or
about July 28, 2021, adding as defendants “Social Security,”
construed as the Social Security Administration (“SSA”), and “A.
LJ.

Judge”

(the

“federal

defendants”).

(ECF

No.

5).

The

handwritten explanation of the case in this complaint states:
I am here to side my case against
Montgomery County Pub[l]ic School Board ask
for my Retirement Back in 4-1-19 and did not
get.
Did get the money and still homeless.
No places call my own. So I did Disability
Insurance Benefits, in 12-12-18. I [end] up
Adventist Behavioral Health Hospital. 8-2918 and 9-15-18 [went] to safe Journey House.
9-15-18 9-22-18. I take Medications. Social
Security had to the Psychologist, 9-10-19. I
went to Hearing 6-2-2020 and Hearing 6-2-21.
Both versions of the complaint designated the type of case as
“an action of . . . tort” and listed a claim amount of $30,000.
The United States, on behalf of the federal defendants,
removed this action to this court on May 26, 2022. (ECF No. 1).
On July 21, 2022, the United States, on behalf of the federal
defendants, filed a motion to substitute itself for the federal
defendants and to dismiss the action pursuant to Federal Rules of
Civil Procedure 12(b)(6) and/or 12(b)(1).
2

(ECF No. 15).

The

United States argues in its motion that 1) neither of the two
versions of Plaintiff’s complaint states a plausible claim upon
which relief may be granted and 2) the court lacks subject matter
jurisdiction over the case because Plaintiff failed to file an
administrative claim before filing her complaints. 2

The Clerk

issued a notice the same date advising Plaintiff of her right to
respond to the government’s motion within twenty-eight (28) days
and providing a copy of Federal Civil Rules 12 and 56.

(ECF No.

16).
On July 25, 2022, this court issued an order noting that the
court had not been advised that service was effected on Defendant
Montgomery County Public Schools and that the summons issued by
the state court had likely expired.

(ECF No. 17).

The order

directed Plaintiff “either to file an affidavit reflecting that
service of process was effected on Defendant Montgomery County
Public Schools or request the Clerk to issue a summons within
fourteen (14) days.” It also directed the United States, on behalf
of the federal defendants, to file copies of all filings in the
The United States interprets Plaintiff’s complaint as being
brought pursuant to the Federal Tort Claims Act, and the
administrative exhaustion issue it raises is related to the
exhaustion requirements under that Act. Because the only reference
to a possible tort in this case is Plaintiff’s checking the box
labeled “tort” on the form complaints, this court does not construe
the allegations in this case as related to the Federal Tort Claims
Act.
However, administrative exhaustion issues may otherwise
arise
for
claims
brought
against
the
Social
Security
Administration, as will be discussed later in this opinion.
2

3

state court action pursuant to Local Rule 103.5.a, which the United
States did on August 4, 2022.

(ECF No. 18).

Plaintiff did not

file an affidavit or request the Clerk to issue a summons within
fourteen days.
On September 20, 2022, this court issued an order to show
cause, directing Plaintiff to “show good cause within fourteen
(14) days as to why Defendant Montgomery County Public School
should not be dismissed without prejudice pursuant to Fed. R. Civ.
P. 4(m) and Local Rule 103.8.a,” warning Plaintiff that “failure
to respond may result in the dismissal of Montgomery County Public
School without further notice.”

(ECF No. 21).

To this date,

Plaintiff has not attempted to show good cause, nor has she filed
any opposition to the motion to dismiss.

Indeed, Plaintiff has

not filed anything in this court related to this case.
To

survive

a

motion

to

dismiss

under

Rule

12(b)(6),

“a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Determining

whether a complaint states a plausible claim for relief will . . .
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
In

undertaking

this

review,

the

court

Id. at 679.

liberally

construes

Plaintiff’s pro se complaint, takes all facts pleaded as true, and
4

draws all reasonable inferences in Plaintiff’s favor.

See Jackson

v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
However, because Plaintiff failed to file any opposition to
the United States’ motion, the court has discretion to dismiss the
case without reaching the merits.

See Pueschel v. United States,

369 F.3d 345, 354 (4th Cir. 2004); see also White v. Wal Mart
Stores, Inc., No. 13–00031-ELH, 2014 WL 1369609, at *2 (D.Md. Apr.
4, 2014) (“When a plaintiff fails to oppose a motion to dismiss,
a district court is entitled, as authorized, to rule on the motion
and dismiss the suit on the uncontroverted bases asserted in the
motion.” (cleaned up)).

Although the district court also has

“discretion to decline to grant a motion to dismiss based on the
failure to file a timely opposition when the motion is plainly
lacking in merit,” that is not the case here.

White, 2014 WL

1369609, at *2 (internal quotation marks omitted).
Neither version of Plaintiff’s complaint states a cognizable
cause of action against either of the federal defendants.

The

original complaint appears to allege that Montgomery County Public
Schools, Plaintiff’s former employer, failed to pay her wages and
retirement

payments

that

she

earned—it

does

allegations concerning the federal government.

not

make

any

The second version

of the complaint seems to suggest that Plaintiff applied to the
SSA for Disability Benefits, and she attended hearings apparently
as part of that application process.
5

However, she does not state

that

she

was

denied

those

benefits,

let

alone

that

she

was

improperly denied those benefits or that she was denied any due
process.
Assuming that Plaintiff’s claim is that she was improperly
denied benefits, it does not appear that Plaintiff has exhausted
the administrative remedies provided for under the Social Security
Act, such that filing suit in this court would not be the proper
avenue for relief at this stage.

See John B. v. Comm’r, Soc. Sec.

Admin., No. 19-1955-SAG, 2019 WL 6879776, at *2 (D.Md. Dec. 17,
2019) (explaining that the SSA is immune from suit except for, as
authorized under the Social Security Act, after a “final decision”
that follows exhaustion of all steps of the administrative review
process).

Upon denial of benefits, Plaintiff would have needed

first to submit a request for reconsideration by the state SSA
agency that denied her benefits.

See Bowen v. City of New York,

476 U.S. 467, 471-72 (1986) (citing 20 C.F.R. §§ 404.909(a)(1),
416.1409(a)). Then, if she is dissatisfied with the state agency’s
decision on reconsideration, she may request a hearing by an
administrative law judge within the SSA Office of Hearings and
Appeals.

Id. at 472 (citing 20 C.F.R. §§ 404.929, 416.1429,

422.201 et seq.).

If the administrative law judge’s determination

is adverse to her, she may then seek review by the Appeals Council.
Id. (citing 20 C.F.R. §§ 404.967–404.983, 416.1467–416.1483).

If

the Appeals Council’s ruling is adverse, only then may she seek
6

judicial review in federal district court (not state court, where
Plaintiff originally filed her complaints).
§§

405(g),

421(d),

1383(c)(3);

20

Id. (citing 42 U.S.C.

C.F.R.

§§

404.900(a)(5),

404.981, 416.1400(a)(5), 416.1481, 422.210).
Based on the statements in the second version of Plaintiff’s
complaint, it seems that she attended two hearings related to her
application for disability benefits.

Her naming of an “A. LJ.

Judge” in her complaint may be interpreted as her intention that
her

complaint

serve

as

a

request

for

a

hearing

before

an

administrative law judge, but she would have needed to request
that hearing directly from the SSA.

If she has already had a

hearing before an administrative law judge, it is not reflected in
the complaint that she has sought review by the Appeals Council.
Because Plaintiff has failed to state a claim and has failed to
exhaust administrative remedies, the United States’ motion to
dismiss will be granted.

See John B., 2019 WL 6879776, at *1-2

(dismissing a pro se plaintiff’s complaint related to a decision
by the SSA because he had failed to exhaust the administrative
remedies provided for under the Social Security Act).
Additionally,

Plaintiff

has

failed

to

comply

with

this

court’s order that she file an affidavit reflecting that service
of process was effected on Defendant Montgomery County Public
Schools or request the Clerk to issue a summons within the allotted
fourteen days.

Because Plaintiff has failed to demonstrate that
7

Defendant Montgomery County Public Schools has been served, to
comply with this court’s order, or to file anything in this court
since the case was removed, the complaint against Montgomery County
Public

Schools

will

be

dismissed

without

prejudice.

See

Fed.R.Civ.P. 4(m) (providing that a court may “on its own after
notice to the plaintiff” dismiss an action without prejudice if a
defendant is not served within a specified time); Local Rule
103.8.a

(same);

see

also

Fed.R.Civ.P.

41(b)

(providing

for

dismissal if the plaintiff fails to prosecute or comply with a
court order).
For the foregoing reasons, the United States’ motion to
dismiss will be granted. 3

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

Because this case will be dismissed, it is unnecessary to
rule on the United States’ motion to substitute.
3

8