Papazoni v. Shumlin et al

Filing 16

OPINION AND ORDER granting 11 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss; denying as moot 12 Motion for More Definite Statement; granting 14 Motion to Dismiss. Mr. Papazoni is denied leave to amend with re spect to his claims against Governor Shumlin. Mr. Papazoni is GRANTED thirty (30) days leave to file an amended complaint that complies with Rule 8(a) of the Federal Rules of Civil Procedure in order to provide more detailed allegations regarding SSA and VSHA. Signed by Judge William K. Sessions III on 4/15/2014. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID PAPAZONI,
Plaintiff,
v.
PETER SHUMLIN,
Governor, State of
Vermont, Official
Capacity, VERMONT
STATE HOUSING AUTHORITY,
and SOCIAL SECURITY
ADMINISTRATION,
Defendants.

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Case No. 2:13-cv-258

OPINION AND ORDER
(Docs. 11, 12, 14)
Pro se Plaintiff, David Papazoni, brings this action
against Peter Shumlin, Governor of the State of Vermont, in
his official capacity (“Governor Shumlin”), Vermont State
Housing Authority (“VSHA”), and the Social Security
Administration (“SSA”) (collectively, “Defendants”).

Now

pending before the Court is Governor Shumlin’s Motion to
Dismiss, VSHA’s Motion to Dismiss, or in the alternative,
Motion for a More Definite Statement, and SSA’s Motion to
Dismiss.

Mr. Papazoni has not filed responses.

For the

reasons that follow, Governor Shumlin’s Motion to Dismiss
(Doc. 11) is GRANTED, VSHA’s Motion to Dismiss (Doc. 12) is
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GRANTED and Motion for a More Definite Statement is DENIED
as moot, and SSA’s Motion to Dismiss (Doc. 14) is GRANTED.
DISCUSSION
Mr. Papazoni’s Complaint is comprised of three
paragraphs.

(Doc. 4 at 2.)

He alleges that Defendants

“continue to use [his] compr[o]mi[s]ed Social Security
number” and have committed abuse, fraud, and discrimination
against him.

Id.

He also alleges he is “still unable to

obtain medications” due to “ongoing eligibility [f]rauds.”
Id.

He requests “reasonable accommodations” and seeks to

“incarcerate the abusers, [f]rauders [etc.]” Id.
I.

STANDARD OF REVIEW

Defendants bring their motions to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6).

A facially

sufficient complaint may be properly dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power
to adjudicate it.”
113 (2d Cir. 2000).

Makarova v. United States, 201 F.3d 110,
The party asserting subject matter

jurisdiction has the burden of proving, by a preponderance
of the evidence, that the court has jurisdiction.

Id.

On a motion to dismiss pursuant to Rule 12(b)(6), the

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court must accept all factual allegations as true and draw
all reasonable inferences in favor of the plaintiff.

Mills

v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
“[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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

“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.”
Iqbal, 556 U.S. at 678.
Complaints brought by pro se litigants are held “to
less stringent standards than formal pleadings drafted by
lawyers.” Peay v. Ajello, 470 F.3d 65, 67 (2d Cir. 2006)
(internal quotation marks and citation omitted).

A pro se

complaint is construed “to raise the strongest arguments it
suggests.”

Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(citation omitted).
II.

Governor Shumlin’s Motion to Dismiss

Governor Shumlin argues that the doctrine of res
judicata bars Mr. Papazoni’s claims against him.

His Motion

to Dismiss cites a recent case brought by Mr. Papazoni that

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was dismissed by Chief Judge Christina Reiss on May 9, 2013.
Papazoni v. State of Vermont, No.5:12-cv-01-cr, Dkt. No. 22,
slip op. at 4 (D.Vt. May 9, 2013), appeal dismissed, No. 132281, Dkt. No. 16, slip op. (2d Cir. Aug. 21, 2013).
The doctrine of res judicata, or claim preclusion,
provides that, “a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”
Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)
(internal quotation marks and citation omitted).

The

district court applies federal law to determine the
preclusive effect of a federal judgment.

Marvel Characters,

Inc. V. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

The Second

Circuit’s test for claim preclusion requires the district
court to determine whether the previous action was: “(1) a
final judgment on the merits, (2) by a court of competent
jurisdiction, (3) in a case involving the same parties or
their privies, and (4) involving the same cause of action.”
NML Capital, Ltd. V. Banco Central de la Republica
Argentina, 652 F.3d 172, 184-85 (2d Cir. 2011).
This Court issued an order dismissing Mr. Papazoni’s
previous case on the merits; that case involved the same

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defendant and the same causes of action.

The previous case

alleged that Governor Shumlin participated in “Abuses,
Frauds, and Discriminations” in the form of an improperly
recorded social security number and the denial of access to
medications through the Medicaid D prescription drug
program, among other claims.

Papazoni v. State of Vermont,

No.5:12-cv-01-cr, Dkt. No. 22, slip op. at 2 (D.Vt. May 9,
2013), appeal dismissed, No. 13-2281, Dkt. No. 16, slip op.
(2d Cir. Aug. 21, 2013).

Chief Judge Reiss granted Mr.

Papazoni leave to file an amended complaint on two separate
occasions.

Id. at 3-4.

The May 9, 2013 Opinion and Order provides a thorough
analysis that considered the possibility that Mr. Papazoni
intended to bring claims against Governor Shumlin in his
individual capacity, even though, as here, the Second
Amended Complaint expressly referred to Governor Shumlin in
his “official capacity.”

Id. at 5.

Chief Judge Reiss also

concluded that Mr. Papazoni failed to allege facts
connecting Governor Shumlin to an ongoing violation of
federal law which might merit prospective injunctive relief,
including “reasonable accommodations,” under the Ex Parte
Young doctrine.

Id. at 8, 9.

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The Court concluded that Mr. Papazoni failed to state a
claim against Governor Shumlin.

Dismissal for failure to

state a claim under Rule 12(b)(6) operates as a “judgment on
the merits.”

Federated Dept. Stores v. Moitie, 452 U.S.

394, 398, n.3 (1981); see also Berrios v. New York City
Hous. Auth., 564 F.3d 130, 134 (2d Cir. 2009). Therefore,
because Mr. Papazoni’s claims against Governor Shumlin have
already been dismissed on the merits for failure to state a
claim, Governor Shumlin’s Motion to Dismiss is GRANTED, and
all claims against Governor Shumlin are DISMISSED WITH
PREJUDICE.
III. SSA’s Motion to Dismiss
Defendant SSA moves to dismiss for lack of subject
matter jurisdiction, pursuant to Rule 12(b)(1), and for
failure to state a claim, pursuant to Rule 12(b)(6).
14 at 1.)

(Doc.

SSA argues that the doctrine of sovereign

immunity bars Mr. Papazoni’s claims, and Mr. Papazoni has
not alleged a viable claim under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 1346(b)(1), or the Rehabilitation Act,
29 U.S.C. § 794(a), necessary to invoke this Court’s subject
matter jurisdiction.
Under the doctrine of sovereign immunity this Court

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lacks subject matter jurisdiction to hear suits against the
United States absent consent.

See United States v. Dalm,

494 U.S. 596, 608 (“[T]he terms of the [United States’]
consent to be sued in any court define [the] court’s
jurisdiction to entertain the suit.”); see also Presidential
Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir.
1999) (“In any suit in which the United States is a
defendant, there must be a cause of action, subject matter
jurisdiction, and a waiver of sovereign immunity.”).

“The

sovereign immunity of the United States may only be waived
by a federal statute.”

Id. at 139.

Mr. Papazoni does not

make any factual allegations against SSA that would support
claims under a federal statute allowing him to bring suit
against the United States or SSA in federal court.
In order to construe Mr. Papazoni’s Complaint in the
most liberal manner possible, the Court will analyze Mr.
Papazoni’s claims under the FTCA, which provides a limited
waiver of sovereign immunity necessary.

However, Mr.

Papazoni nonetheless has failed to state a claim upon which
relief can be granted.
defendant.

First, SSA is not a proper party

“Under the FTCA, suit must be brought directly

against the United States, and federal agencies are immune

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from suit.”

Langella v. Bush, 306 F. Supp. 2d 459, 464

(S.D.N.Y. 2004) (citing 28 U.S.C. § 2679(a) and Myers &
Myers, Inc. v. United States Postal Serv., 527 F.2d 1252,
1256 (2d Cir. 1975)).
Furthermore, Mr. Papazoni has not alleged or otherwise
shown that he has exhausted his administrative remedies or
that he has sought review of whatever adverse action
underlies his claims for purposes of the FTCA.

See 28

U.S.C. § 2675(a) (requiring claimant to “first present[] the
claim to the appropriate Federal agency and his claim shall
have been finally denied.”); see also Langella, 306 F. Supp.
2d at 464 (holding plaintiff did not meet pleading burden
with respect to exhaustion requirement where plaintiff “did
not file an administrative claim with respect to the alleged
torts of the SSA.”).

Because Mr. Papazoni has not

demonstrated compliance with the FTCA,1 this Court lacks
1

SSA’s Motion to Dismiss cites a signed “Declaration of Lucinda
E. Davis,” an SSA official (Doc. 14-1) as evidence that Mr. Papazoni
has not lodged an administrative tort claim against the SSA. On a
Rule 12(b)(1) motion to dismiss, the Court may look to evidence
outside the pleadings to resolve disputed factual issues pertaining to
jurisdiction. State Employees Bargaining Agent Coalition v. Rowland,
494 F.3d 71, 77, n. 4 (2d Cir. 2007). However, on a Rule 12(b)(6)
motion, matters outside the pleadings are not considered unless the
motion is treated as one for summary judgment. Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Because Mr.
Papazoni’s Complaint does not provide sufficient factual detail
regarding his claims against SSA, the Court need not consider the
affidavit to reach the conclusion that Mr. Papazoni has failed to
plead an FTCA claim or allege exhaustion.

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subject matter jurisdiction to hear any FTCA-based claims
against SSA.

See In re Agent Orange Prod. Liab. Litig., 818

F.2d 210, 214 (2d Cir. 1987) (failure to plead and prove
compliance with FTCA deprives district court of
jurisdiction).
The Social Security Act also forecloses actions
“against the United States, the Commissioner of Social
Security, or any officer or employee thereof” brought under
28 U.S.C. § 1331 or 1346.

42 U.S.C. § 405(h); see also

Weinberger v. Salfi, 422 U.S. 749, 761 (1975) (holding §
405(h) forecloses constitutional claims).

The proper

mechanism for review of decisions by the Commissioner of
Social Security is set forth at 42 U.S.C. § 405(g), unless
the case is of a nature that no appropriate administrative
forum exists.

See Binder & Binder, P.C., v. Barnhart, 399

F.3d 128, 130 (2d Cir. 2005) (identifying circumstance under
which § 405(h) did not apply).

Without additional factual

allegations, the Court cannot infer or otherwise conclude
that § 405(h) does not apply, thereby precluding Mr.
Papazoni’s claims against SSA.
Finally, to the extent Mr. Papazoni’s request for
“reasonable accommodations” and allegations regarding his

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Medicaid benefits may be interpreted as a claim against SSA
under the Rehabilitation Act, Mr. Papazoni has not made out
a prima facie case.

Section 504 of the Rehabilitation Act

(“Section 504") prohibits discrimination by federal agencies
on the basis of disability.

29 U.S.C. § 794(a).2

To

establish a prima facie case of benefit discrimination under
Section 504, the plaintiff must show: “(1) he is a
‘handicapped person’ under the Act; (2) he is ‘otherwise
qualified’ for the benefit sought; (3) he is being denied
the benefit ‘solely by reason of’ his handicap; and (4) the
benefit exists as part of a federal[ program].”

Flight v.

Gloeckler, 878 F. Supp. 424, 426 (N.D.N.Y. 1995) (citing Doe
v. New York University, 666 F.2d 761, 774 (2d Cir. 1981)).
Mr. Papazoni has not alleged any facts regarding any of
these elements.

The Court is “not bound to accept as true a

legal conclusion couched as a factual allegation.”

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Section 504 provides in relevant part:
No otherwise qualified individual with a
disability in the United States, as defined in
section 706(8) of this title shall, solely by
reason of her or his disability, be excluded from
participation in, be denied the benefits of, or
be subjected to discrimination . . . under any
program or activity conducted by any Executive
agency.

29 U.S.C. § 794(a).

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Iqbal,

556 U.S. at 678.
Therefore, because Mr. Papazoni has failed to state a
claim on which relief can be granted under FTCA or the
Rehabilitation Act, and the doctrine of sovereign immunity
generally bars any other claims against SSA, this Court
lacks subject matter jurisdiction over Mr. Papazoni’s claims
against SSA.

Accordingly, SSA’s Motion to Dismiss (Doc. 14)

is GRANTED.
IV. VSHA’s Motion to Dismiss, or in the alternative,
Motion for a More Definite Statement
Defendant VSHA moves to dismiss pursuant to Rule
12(b)(6) arguing that Mr. Papazoni’s Complaint lacks
sufficient factual allegations to plausibly entitle him to
relief.

(Doc. 12 at 1.)

Alternately, VSHA moves for a more

definite statement, pursuant to Rule(e).

Id.

Mr.

Papazoni’s Complaint does not provide any factual
allegations specific to VSHA.

Therefore, VSHA’s Motion to

Dismiss (Doc. 12) is GRANTED, and the Motion for a More
Definite Statement is DENIED as moot.
CONCLUSION
For the reasons set forth above, Governor Shumlin’s
Motion to Dismiss (Doc. 11) is GRANTED, VSHA’s Motion to
Dismiss (Doc. 12) is GRANTED and Motion for a More Definite
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Statement is DENIED as moot, and SSA’s Motion to Dismiss
(Doc. 14) is GRANTED.
Generally, a pro se litigant is afforded an opportunity
to amend his or her pleading prior to dismissal “unless the
court can rule out the possibility, however unlikely it
might be, that an amended complaint would succeed in stating
a claim.”

Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(internal quotation marks and citation omitted).

Leave to

amend may be denied where amendment would be futile.

See

Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993)
(“Where it appears that granting leave to amend is unlikely
to be productive . . . it is not an abuse of discretion to
deny leave to amend.”).
Chief Judge Reiss has already concluded that granting
leave to amend with respect to Mr. Papazoni’s claims against
Governor Shumlin would be futile, id at 9, and the Court
will not disturb that conclusion.

Therefore, Mr. Papazoni

is denied leave to amend with respect to his claims against
Governor Shumlin.
With respect to SSA and VSHA, Mr. Papazoni has not had
an opportunity to file an amended complaint.

Mr. Papazoni

is GRANTED thirty (30) days leave to file an amended

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complaint that complies with Rule 8(a) of the Federal Rules
of Civil Procedure in order to provide more detailed
allegations regarding SSA and VSHA.

Failure to file an

amended complaint within thirty (30) days of the date of
this Order may result in dismissal of all claims against SSA
and VSHA without prejudice.
Dated at Burlington, in the District of Vermont, this
15th day of April, 2014.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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