Yusim v. SSA Office of Disability Adjudication and Review

Filing 51

MEMORANDUM AND ORDER: As set forth in the Court's September 11, 2018 Memorandum and Order, Defendant's December 6, 2017 motion 48 to dismiss the complaint is GRANTED. See attached Memorandum and Order for details. The Clerk of Court is respectfully directed to to serve a copy of this Order on the pro se Plaintiff and close the case. Ordered by Judge LaShann DeArcy Hall on 9/11/2018. (Valentin, Winnethka)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIKHAIL YUSIM,
MEMORANDUM AND ORDER
12-CV-02090 (LDH) (LB)

Plaintiff,
-againstOFFICE OF ACTING COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION,
Defendant.
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LASHANN DEARCY HALL, United States District Judge:

Pro se Plaintiff Mikhail Yusim brings this action against Defendant Office of Acting
Commissioner of Social Security Administration (the “SSA” or the “Administration”) for alleged
violations of the Privacy Act of 1974, 5 U.S.C. § 552a (the “Privacy Act”). Defendant moves
pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the third amended complaint.
BACKGROUND
On September 15, 2011, Plaintiff received a letter from the SSA informing him of an
October 3, 2011 appointment to file for Supplemental Security Income (“SSI” or “benefits”).
(Third. Am. Compl. at 1, 3, ECF No. 32.) Following the appointment, the SSA sent Plaintiff an
application summary, which stated, “On October 3, 2011, we talked with you and completed
your application for SOCIAL SECURITY BENEFITS.” (Id. at 4.) Subsequently, in an October
10, 2011 letter, the SSA informed Plaintiff that his application for benefits had been denied. (Id.
at 6.) In addition, the letter listed Plaintiff’s filing date for benefits as September 12, 2011. (Id.
at 6-7.) Plaintiff contacted the SSA and requested a copy of any application that was filed on
September 12, 2011. (Id. at 2.) Plaintiff alleges that, because of his request to view the benefits
application and other requests, the SSA “starting pushing [his] file aside,” which resulted in a
delay of his hearing before an Administrative Law Judge. (Id.) Because of this delay, Plaintiff
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claims that he was evicted from his apartment, lost his personal property, and that New York
state terminated his Section 8 Housing ChoiceVoucher and Section 8 Subsidy Assistance. (Id. at
2, 13-17.) Plaintiff seeks monetary damages and reinstatement of his Section 8 benefits. (Id. at
2.)
STANDARD OF REVIEW
To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). A
court considering a Rule 12(b)(6) motion must take the factual allegations in the complaint to be
true and draw all reasonable inferences in the plaintiff’s favor. Id.
Where, as here, the plaintiff is proceeding pro se, “courts are obliged to construe the
plaintiff’s pleadings liberally.” Giannone v. Bank of Am., N.A., 812 F. Supp. 2d 216, 219
(E.D.N.Y. 2011) (alterations omitted). As such, their complaints should be read to “raise the
strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013).
A pro se complaint, “however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Nevertheless, pro se
plaintiffs “remain subject to the general standard applicable to all civil complaints under the

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Supreme Court’s decisions in Twombly and Iqbal.” White v. Vance, No. 10-CV-6142, 2011 WL
2565476, at *2 (S.D.N.Y. June 21, 2011).
DISCUSSION
The Privacy Act “serves to safeguard the public interest in informational privacy by
delineating the duties and responsibilities of federal agencies that collect, store, and disseminate
personal information about many individuals.” Doe v. U.S. Civil Serv. Comm’n, 483 F. Supp.
539, 555 (S.D.N.Y. 1980). To state a claim for money damages under the Privacy Act, a
plaintiff must assert that an agency failed to maintain accurate records, that it did so intentionally
or willfully, and consequently, that an adverse determination was made as to the plaintiff. See 5
U.S.C. § 552a(g)(1)(C), (g)(4). In other words, a “plaintiff must plausibly allege: inaccurate
records, agency intent, proximate causation, and an ‘adverse determination.’” Toolasprashad v.
Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002). Defendant argues that Plaintiff’s third
amended complaint fails to sufficiently plead these elements. (See Def.’s MOL at 5, ECF No.
49.) The Court agrees.
Plaintiff alleges that the SSA’s records were inaccurate because the Administration listed
his filing date for SSI as September 12, 2011, instead of October 3, 2011. (See Third. Am.
Compl. at 1-2.) Even assuming this fact as true, as the Court must, the inaccuracy alone is
insufficient to state a claim under the Privacy Act. Plaintiff fails to allege that any failure of
Defendant to maintain accurate records was done intentionally or willfully. See 5 U.S.C.
§ 552a(g)(4). Rather, Plaintiff alleges that the inaccuracy was a result of Defendant’s
“ignorance.” (Third. Am. Compl. at 2.) See Tarullo v. Def. Contract Audit Agency, 600 F. Supp.
2d 352, 361 (D. Conn. 2009) (“An agency acts in an intentional or willful manner either by
committing the act without grounds for believing it to be lawful, or by flagrantly disregarding

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others’ rights under the Act.... the violation must be so patently egregious and unlawful that
anyone undertaking the conduct should have known it unlawful.” (citing Deters v. U.S. Parole
Comm’n, 85 F.3d 655, 660 (D.C. Cir.1996)). Plaintiff also fails to demonstrate a nexus between
the purported inaccurate application filing date and the injury suffered, or that he suffered an
adverse determination because of the inaccurate application filing date. Indeed, Plaintiff alleges
that it was his request to view his records that resulted in the delayed hearing before an
Administrative Law Judge, as opposed to the inaccurate record of his filing date. By extension,
it was the delayed hearing that precipitated his eviction and loss of Section 8 benefits. (Third
Am. Comp. at 2, 17.) Moreover, Plaintiff ultimately received a “fully favorable” determination
regarding his benefits. (See Marian Jones Decl. ¶ 3(e) and Ex. 3, ECF No. 24.); see also
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (“Congress has failed to provide for ‘complete
relief’: respondents have not been given a remedy in damages for emotional distress or for other
hardships suffered because of delays in their receipt of Social Security benefits.”). As such,
Plaintiff fails to state a claim under the Privacy Act.
CONCLUSION
For the aforementioned reasons, Defendant’s motion to dismiss Plaintiff’s third amended
complaint is GRANTED. The complaint is dismissed with prejudice, as repleading would be
futile. See Roth v. CitiMortgage Inc., 756 F.3d 178, 183 (2d Cir. 2014) (“[L]eave to amend need
not be granted where the proposed amendment would be futile.”); Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (“The problem with [plaintiff’s] causes of action is substantive; better
pleading will not cure it.”). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

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appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of
the Court is respectfully directed to enter judgment and close this case.

SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge
Eastern District of New York

Dated: Brooklyn, New York
September 11, 2018

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