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Zied v. Barnhart

June 20, 2008


The opinion of the court was delivered by: Judge Caputo



Presently before the Court are Magistrate Judge Thomas M. Blewitt's Report and Recommendation ["R&R"] (Doc. 29), Plaintiff Mindy Jaye Zied's Objections thereto (Doc. 59), and Plaintiff's "Motion for Possible Alternative Relief" (Doc. 57). The Magistrate Judge recommended that the Court grant Defendants' Motion to Dismiss (Doc. 19) with respect to all claims except those FOIA claims in Count IV that arose from Plaintiff's August 2002 requests for information. The Magistrate Judge also recommended that the Court dismiss without prejudice Plaintiff's "Motion for Judgment in Her Favor Against All Defendants" (Doc. 22). For the reasons that follow, the Court will adopt the Magistrate Judge's Report and Recommendation, grant Defendants' Motion to Dismiss all claims except the FOIA claims in Count IV arising from Plaintiff's August 2002 requests, and deny Plaintiff's Motion for Judgment. The Court will also deny Plaintiff's Motion for Possible Alternative Relief.


Plaintiff Mindy Jaye Zied brings this civil rights action against former Commissioner of the Social Security Administration Jo Anne B. Barnhart in her individual and official capacities; the SSA; SSA employees Mr. Hawksworth, Mrs. Schopp, and J.A. Breen in their individual capacities; and against "any other unknown and unnamed individuals who may be liable on the claims stated herein, in their individual and/or official capacities while working as federal employees. . . ." (Compl., Doc. 1.) Plaintiff alleges violations of Section 504 of the Rehabilitation Act of 1973, (Count I), the Privacy Act of 1974 (Count III), and the Freedom of Information Act ("FOIA") (Count IV). Plaintiff also brings Bivens claims asserting her rights under the Due Process Clause of the Fifth Amendment to the United States Constitution (Count II), the First Amendment to the United States Constitution (Count VI), and FOIA (Count V). (Compl., Doc. 1; R&R, Doc. 29, at 2-3.)

Defendants filed a Motion to Dismiss (Doc. 19) all of Plaintiff's claims. In support, Defendants argue that all the claims are time-barred; Defendants state that the claims should also be dismissed on substantive grounds but that they have confined their brief to timeliness arguments "[i]n the interest of brevity," and would, should the Court desire it, file a supplemental brief addressing the substantive grounds for their motion. (Br. in Supp., Doc. 20, at 2 & n.3.) Magistrate Judge Blewitt concluded that the applicable statutes of limitations bar all claims except Plaintiff's FOIA claims based on August 2002 requests, and that neither equitable estoppel, continuing violation, nor fraudulent concealment theories justify equitably tolling the statutes of limitations. (R&R, Doc. 29.) The Magistrate Judge thus recommended granting Defendants' motion with respect to all claims except the FOIA claims that arose from Plaintiff's August 2002 requests for information. (Id. at 26-27.) The Magistrate Judge recommended recommitting the case to him for further proceedings regarding these claims. (Id. at 27.)

Plaintiff filed a "Motion for Judgment in Her Favor Against All Defendants" (Doc. 22), in which she expressed her opposition to Defendants' motion to dismiss and to which she attached many exhibits. The Magistrate Judge recommended this Court deny this motion as premature at the pleading stage. Plaintiff 's Objections are fully briefed and ripe for disposition.


I. Review of Magistrate Judge's Report and Recommendation

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).

II. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007), meaning, enough factual allegations "to raise a reasonable expectation that discovery will reveal evidence of" each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


I. Appropriate Statutes of Limitations

Contrary to Plaintiff's objection that the six (6) year statute of limitations in 28 U.S.C. § 2401(a) governs her claims (see Pl.'s Objections, Doc. 59, at 17-19), the Magistrate Judge correctly set forth the applicable statutes of limitations. While section 2401's six (6) year limitations period applies to Plaintiff's FOIA claims, see Spannaus v. United States Dep't of Justice, 824 F.2d 52, 54-55 (D.C. Cir. 1987), her Rehabilitation Act, Privacy Act, and Bivens claims are governed by two (2) year limitations periods. See 5 U.S.C. § 552a(g)(5) (Privacy Act); DiFrancesco v. Aramark Corp., 169 Fed. Appx. 127, 129 (3d Cir. 2006) (Rehabilitation Act); Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers, 855 F.2d 1080, 1087 (3d Cir. 1988) (Bivens claims).

The limitations periods for Rehabilitation Act and Bivens claims begin to run "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Wooden v. Eisner, 143 Fed. Appx. 493, 494 (3d Cir. 2005) (Bivens claims); Saylor v. Ridge, 989 F. Supp. 680, 686 (E.D. Pa. 1998) (Rehabilitation Act). The limitations period for Privacy Act claims begins to run when "the cause of action arises," 5 U.S.C. 552a(g)(5), meaning, when "the individual knows or has reason to know of the alleged error in the individual's record and the individual is harmed by the alleged error." Green v. Westphal, 94 Fed. Appx. 902, 904 (3d Cir. 2004). And the limitations period for FOIA claims begins to run when "the right of action first accrues," 28 U.S.C. § 2401(a), meaning "as soon as (but not before) the person challenging the agency action can institute and maintain a suit in court." Spannaus, 824 F.2d at 56.

Although the Complaint in this action was filed November 30, 2006, no party has objected to the Magistrate Judge's use of June 16, 2006, the date Plaintiff originally filed these claims together with her Social Security appeal under a different case number, as the filing date for statute of limitations purposes.

II. Accrual of Plaintiff's Claims

A. Count I: Rehabilitation Act Claims

In Count I, Plaintiff alleges discrimination on the basis of disability in violation of section 504 of the Rehabilitation Act. The Magistrate Judge concluded that Plaintiff knew or had reason to know of all of the injuries -- that is, instances of discrimination -- that are the basis of her action more than two (2) years before she filed her Complaint. As a preliminary matter, Plaintiff objects to the Magistrate Judge's use of the "knew or had reason to know of the injury" standard because Defendants did not articulate this standard in arguments before the Magistrate Judge until their Reply Brief (Pl.'s Objections, Doc. 59, at 19-21); however, because Defendants raised their statute of limitations arguments in their Motion to Dismiss (Doc. 19), the Magistrate Judge, and likewise this Court, would apply the aforementioned standard whether or not Defendants ever quoted its exact language. Plaintiff's objection in this regard is thus overruled.

Plaintiff also objects to the Magistrate Judge's characterizations of the incidents she alleges constituted this discrimination in violation of the Rehabilitation Act; nonetheless, Plaintiff's discussion of these objections does not identify any allegedly discriminatory actions that can be inferred from a liberal reading of her Complaint which occurred on or after June 16, 2004, that is, in the two (2) years prior to the date Plaintiff filed her Complaint. (See Pl.'s Objections, Doc. 59, at 9-17, 25-26.) Plaintiff does state in her Objections that "[d]ue to Defendants' willful and intentional with-holding of Plaintiff's records for over 8 years," she discovered for the first time on April 23, 2007, that an SSA Doctor, Joel Ross, "had listed an SSA impairment of Ms. Zied's psychological disability back in 1996 which prevented her from knowing that she suffered an injury under 504 of the Rehabilitation Act of 1973 from that incident." (Pl.'s Objections, Doc. 59, at 55.) Plaintiff does not make clear, nor is it apparent to the Court, however, how discovery of this fact relates to discovery of any discrimination (injury) that Plaintiff allegedly suffered on the basis of being disabled. Furthermore, Plaintiff's Complaint has not been amended to reflect any instances of discrimination that she indicates she discovered in April of 2007.*fn1 This new information, therefore, has no bearing on the matter before this Court: the allegations in Plaintiff's Complaint.

Thus, Plaintiff's objections to the Magistrate Judge's application of the statute of limitations to her ...

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