Passino vs. Social Security Administration
DECISION AND ORDER granting # 11 Defendant's Motion to Dismiss. Plaintiff's complaint is dismissed in its entirety. Signed by Chief Judge Glenn T. Suddaby on 2/14/17. (lmw)(Copy served upon pro se plaintiff via regular and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KRISTERFER G. PASSINO,
SOCIAL SECURITY ADMINISTRATION,
KRISTERFER G. PASSINO, 03-A-4904
Plaintiff, Pro Se
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
FERGUS J. KAISER, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action seeking the production of certain records under
the Privacy Act, 5 U.S.C. § 552a, filed by Kristerfer G. Passino (“Plaintiff”) against the Social
Security Administration (“Defendant” or “SSA”), is Defendant’s motion to dismiss Plaintiff’s
Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ.
P. 12(b)(6) and/or for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
(Dkt. No. 11.) For the reasons set forth below, Defendant’s motion is granted.
Generally, liberally construed, Plaintiff’s Complaint alleges as follows. Plaintiff was
born in 1981 and has been receiving Supplemental Security Income (“SSI”) since he was nine
years old. (Dkt. No. 1, ¶¶ 5-6 [Pl.’s Compl.].) On March 1, 2016, Plaintiff wrote to the SSA in
Gloversville, New York, and requested, pursuant to the Privacy Act and Freedom of Information
Act (“FOIA”), all records pertaining to his disability determination. (Id., ¶ 8; Dkt. No. 1, at 6
[Ex. A to Compl.].)1 In his request, Plaintiff advised the SSA that, pursuant to the Privacy Act
and FOIA, if it failed to respond to his request within twenty days, that failure would be
construed as a denial of his request and he would pursue an appeal. (Dkt. No. 1, ¶ 10 [Pl.’s
Compl.].) Plaintiff did not receive a response from the SSA within the twenty-day time period.
(Id., ¶ 10.) Thereafter, Plaintiff filed an administrative appeal with the “FOIA/PA Appeals
Officer” at the Gloversville Office; however, did not receive a response after twenty days had
elapsed. (Id., ¶¶ 11-12; Dkt. No. 1, at 10 [Ex. B to Compl.].) Plaintiff now requests this Court to
enter an order directing the SSA to provide him with the records that he has requested. (Dkt. No.
1, at 3 [Pl.’s Compl.].) Plaintiff filed his Complaint on April 14, 2016. (Id., at 4.)
Parties’ Briefing on Defendant’s Motion
Defendant’s Memorandum of Law
Generally, in its memorandum of law, Defendant asserts three arguments. (Dkt. No. 11,
Attach. 1 [Def.’s Mem. of Law].)
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ pleadings and motion papers.
First, Defendant argues that the Privacy Act provides a right of action only when an
agency refuses to comply with an individual request and that, in the present case, the SSA did
not refuse Plaintiff’s request but instead provided him with an interim response while it
conducted a search for his records. (Id. at 8-9.) In addition, Defendant argues that it has now
provided Plaintiff with a copy of all records that are in its possession. (Id. at 9.)
Second, Defendant argues that Plaintiff’s claim is moot because (a) it has provided
Plaintiff with the records in its possession, (b) the fact that it destroyed some of Plaintiff’s
records according to its record retention policies does not save Plaintiff’s claim, and (c) Plaintiff
may not recover monetary damages for a claim brought under 5 U.S.C. § 522a(g)(1)(B). (Id. at
Third, and finally, Defendant argues that, even if it were still withholding Plaintiff’s
records, Plaintiff has not properly exhausted his administrative remedies because he failed to
submit an appeal to the Executive Director for the Office of Public Disclosure as required by 20
C.F.R. § 401.70. (Id. at 11.)
When Defendant filed its motion on July 18, 2016, a deadline of August 15, 2016, was
established for Plaintiff’s response. (See Docket Entry filed July 18, 2016.) Later that day, the
Court issued a text notice reminding Defendant of that deadline. (Text Notice filed July 18,
2016.) However, as of the date of this Decision and Order, no response has been filed. (See
generally Docket Sheet.)
RELEVANT LEGAL STANDARDS
Legal Standard Governing Motions to Dismiss for Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se litigants somewhat loosens the procedural rules governing the form of
pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff
of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2 Rather, as
both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set
forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se plaintiffs must follow.3
Stated more simply, when a plaintiff is proceeding pro se, “all normal rules of pleading are not
absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28 [citations omitted].4
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.5
Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of  documents attached
to the complaint or answer,  documents incorporated by reference in the complaint (and
provided by the parties),  documents that, although not incorporated by reference, are
“integral” to the complaint, or  any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a
court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
After carefully considering the matter, the Court grants Defendant’s motion to dismiss for
the reasons stated in its memorandum of law. (Dkt. No. 11, Attach. 1, at 8-11 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following one point.
In this District, where a non-movant has willfully failed to respond to a movant’s
properly filed and facially meritorious memorandum of law, the non-movant is deemed to have
“consented” to the legal arguments contained in that memorandum of law under Local Rule
7.1(b)(3).6 Stated another way, when a non-movant fails to oppose a legal argument asserted by
a movant, the movant may succeed on the argument by showing that the argument possesses
facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y.
L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the
moving party has met its burden to demonstrate entitlement to the relief requested therein . . . .”);
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009)
(Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 &
n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). Here, the Court finds that
Defendant’s arguments possess, at the very least, facial merit. The Court notes that it has
considered the documents that were sent to Plaintiff in response to his record request pursuant to
the standard governing motions for lack of subject-matter jurisdiction. (Dkt. No. 11, Attach. 3,
at 6-8 [Def.’s Ex. D].) The Court presumes that Plaintiff was satisfied by this response due to his
failure to oppose Defendant’s motion. In any event, the Court would grant Defendant’s motion
to dismiss even if it were to subject it to the more-rigorous scrutiny appropriate for a contested
motion, once again, for the reasons set forth in Defendant’s memorandum of law.
ACCORDINGLY, it is
ORDERED that Defendant’s motion to dismiss Plaintiff’s Complaint (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety with
prejudice; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
Dated: February 14, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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