Davenport v. Colvin
Filing
15
OPINION and ORDER Adopting Magistrate Judge's 13 Report and Recommendation; and Granting Defendant's 10 Motion to Dismiss. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD W. DAVENPORT,
Plaintiff,
Case No. 14-14144
Honorable Linda V. Parker
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S AUGUST
31, 2015 REPORT AND RECOMMENDATION [ECF NO. 13] AND
GRANTING DEFENDANT’S MOTION TO DISMISS [ECF NO. 10]
Plaintiff initiated this lawsuit in the District Court for the District of
Columbia, claiming that Defendant failed to correct his administrative record in
accordance with the Privacy Act of 1974, 5 U.S.C. § 552a. Plaintiff’s Complaint
was transferred to this District and, on March 16, 2015, Defendant filed a motion
to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6).
Plaintiff filed a response to the motion on April 10, 2015. The matter has been
referred to Magistrate Judge Patricia T. Morris for all pretrial proceedings,
including a hearing and determination of all non-dispositive matters pursuant to 28
U.S.C. § 636(b)(1)(A) and/or a report and recommendation (“R&R”) on all
dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B).
On August 31, 2015, Magistrate Judge Morris issued an R&R
recommending that this Court grant Defendant’s motion to dismiss. (ECF No. 13.)
Magistrate Judge Morris concludes that Plaintiff did not comply with the
applicable regulations to request a correction of records kept by the Social Security
Administration and that he, therefore, did not exhaust his administrative remedies
before filing the current lawsuit. (Id. at Pg ID 102.) Magistrate Judge Morris
recommends that the Court dismiss without prejudice Plaintiff’s Complaint. (Id.)
At the end of the R&R, Magistrate Judge Morris informs the parties that
they must file any objections within fourteen days. (Id. at Pg ID 102-03.) She
further advises that the “[f]ailure to file specific objections constitutes a waiver of
any further right of appeal.” (Id., citations omitted). Plaintiff filed objections to
the R&R on September 22, 2015.1 (ECF No. 14.)
When objections are filed to a magistrate judge’s R&R on a dispositive
matter, the Court “make[s] a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942,
944 (E.D. Mich. 2001) (citations omitted). A party’s failure to file objections to
certain conclusions to an R&R waives any further right to appeal on those issues.
Although Plaintiff’s objections are untimely, the Court is considering them in
evaluating the R&R.
2
1
See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, the failure to object to certain conclusions in the magistrate
judge’s report releases the Court from its duty to independently review those
issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
In his objections, Plaintiff reiterates the argument made in response to
Defendant’s motion to dismiss: Defendant never responded to his request for a
correction of his earnings record and thus violated the Privacy Act’s requirement
that a response be made within ten business days of a request. (ECF No. 14 at Pg
ID 105-06.) As Magistrate Judge Morris explains in her R&R, however,
Defendant’s duty to respond to Plaintiff’s communication was never triggered
because he failed to comply with the agency’s requirements for seeking a
correction to his earnings record. The Privacy Act expressly requires, and
therefore empowers, agencies to establish such procedures. See 5 U.S.C.
§ 552a(f)(4).
For these reasons, the Court rejects Plaintiff’s objections to Magistrate Judge
Morris’ August 31, 2015 R&R and adopts the recommendations in the R&R.
Accordingly,
3
IT IS ORDERED that Defendant’s motion to dismiss (ECF No. 10) is
GRANTED and the Court is DISMISSING WITHOUT PREJUDICE Plaintiff’s
Complaint.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 13, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 13, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager
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