Opinion
C. A. 3:20-2706-JMC-SVH
09-27-2021
Chimaroke Victor Eleazu, Plaintiff, v. Honorable Judge Julie Bernard, Brockton District Court; Director of the VA Boston Healthcare System; Superintendent of Peabody Public Schools; and Chief of Peabody Police Department, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Chimaroke Victor Eleazu (“Plaintiff”), proceeding pro se, filed this complaint against the Honorable Judge Julie Bernard (“Judge”); the Director of the VA Boston Healthcare System (“VA Director” or “Defendant”); the Superintendent of Peabody Public Schools (“Superintendent”); and the Chief of Peabody Police Department (“Police Chief”). Plaintiff's complaint states he seeks to: (1) obtain a copy of the Judge's ruling on a civil commitment hearing held January 28, 2019; (2) appeal the denial to amend his VA healthcare records; and (3) reinstate his right to drop off, pick up, and visit his children on school premises in the city of Peabody, Massachusetts. [ECF No. 1 at 2].
This matter comes before the court on Defendant's motion to dismiss. [ECF No. 13]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if she failed to respond adequately to Defendant's motion. [ECF No. 15]. Defendant's motion having been fully briefed [see ECF Nos. 17, 18], this matter is ripe for disposition.
On August 10, 2020, the undersigned submitted report and recommendation to the district judge, recommending dismissal of the Judge, Superintendent, and Police Chief for lack of subject matter jurisdiction. [ECF No. 7].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion to dismiss.
I. Factual and Procedural Background
Relevant to the resolution of the instant motion to dismiss, Plaintiff alleges VA Attorney Vingent Ng, on behalf of VA Boston Healthcare, filed a petition for Plaintiff's civil commitment hearing. [ECF No. 1 at 4; see also ECF No. 1-1 at 1]. The Judge denied the petition after a hearing on January 28, 2019. See Id. Plaintiff sought a copy of the ruling or notes from the hearing, but was only provided a printout noting the denial of the petition. [ECF No. 1 at 4].
In light of the Judge's ruling, on June 19, 2019, Plaintiff filed proposed amendment to his VA Health records, as authorized by the Privacy Act of 1974, 5 U.S.C. § 552a et. seq (“Privacy Act”). Id. at 5; see also ECF No. 1-1 at 3-7. When Plaintiff's request for amendment was denied, he appealed, and his appeal was also denied. Id. Plaintiff has submitted in conjunction with his complaint a letter regarding the denial of his appeal that states he “appealed an August 13, 2019, denial by the VA Boston Health Care System (VAHCS) to amend three Discharge Summaries, ” further stating that medical reviewers “recommended that no amendment be granted as the disputed records reasonably reflect the events that transpired, and they have determined that the provider's findings were accurately documented” and “the notes appear to be accurate, relevant, timely and complete.” [ECF No. 1-1 at 5].
Plaintiff also alleges he was sent a letter dated January 10, 2019, from the Superintendent stating “due to causing a disturbance on school grounds and disrupting the drop off process/procedures at Higgins Middle School you are hereby ordered to stay away from and off of all school premises in the city of Peabody.” [ECF No. 1 at 5]. Plaintiff alleges he had previously complained of being targeted and tailgated by other drivers at the drop-off line. Id.
Plaintiff seeks an order requiring Defendant to amend his medical records and awarding “monetary relief to cover the inconvenience, embarrassment, intentional acts, unfairness, and error.” [ECF No. 1 at 10].
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Be l Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. We ler v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Pursuant to the Privacy Act, 5 U.S.C. § 552a(e), each agency that maintains a system of records shall
(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.
An individual may request the amendment of any record pertaining to him that the individual believes to be inaccurate, irrelevant, untimely, or incomplete. Id. § 552a(d)(2)-(3). As relevant here, an individual may bring a civil action against the agency, when the agency:
(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection; . . .
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.Id. § 552a(g)(1). Finally, to the extent a suit is brought under the provisions of 5 U.S.C. § 552a(g)(1)(C)-(D) and “the court determines that the agency acted in a manner which was intentional or willful, ” an individual can recover monetary damages for, in part, “actual damages sustained by the individual as a result of the refusal or failure.” Id. § 552a(g)(4).
Here, Plaintiff's suit arises from his allegations that the VA Boston Healthcare System violated his rights under the Privacy Act when it failed to amend or correct certain portions of his medical records. However, Plaintiff has brought suit against the incorrect defendant and has failed to state a claim upon which relief can be granted.
First, Plaintiff has sued the Director of the VA Boston Healthcare System. [ECF No. 1 at 1, 3]. However, the Privacy Act provides that an individual may bring a civil case against the agency for failure to amend, not an individual. See 5 U.S.C. § 552a(g)(1); see also, e.g., Abou-Hussein v. Mabus, C/A No. 2:14-CV-02597-RMG, 2015 WL 5178460, at *4 (D.S.C. Sept. 3, 2015). The Privacy Act does not permit Plaintiff to bring suit against the Director of the VA Boston Healthcare System. Therefore, Plaintiff's complaint against Defendant should be dismissed.
As stated by Defendant, “The Director of the VA Boston Healthcare System is Vincent W. Ng. Mr. Ng is not the agency head. The Honorable Robert Wilkie is the Secretary of Veterans Affairs.” [ECF No. 13 at 5 n.2].
Notwithstanding, even if he were to amend his complaint to bring suit against the proper defendant, Plaintiff has failed to state a cognizable claim for relief under the Privacy Act. As correctly noted by Defendant, Plaintiff fails to allege the nature of the information that he sought to have amended and why such amendment is necessary or appropriate. [See ECF No. 13 at 4-5]. Instead, Plaintiff's sole allegations are that the Judge found in his favor at the commitment hearing and, thereafter, his request to amend certain VA records was denied. [See ECF No. 1 at 5; see also ECF No. 1-1 at 3-7 (letters denying Plaintiff's request and appeal of that denial)]. These allegations are insufficient to state a claim under the Privacy Act. See, e.g., Anderson v. Higgans, C/A No. 3:08-3654-RBH, 2008 WL 5378219, at *3 (D.S.C. Dec. 18, 2008) (“The complaint's general claim of rights being violated in reference to mental health treatment and the Privacy Act, absent sufficient factual support, fails to state a claim under either 42 U.S.C. § 1983 or 5 U.S.C.A. § 552a. Although the Court must liberally construe the pro se complaint, Plaintiff must do more than make mere conclusory statements to state a claim.”).
Additionally, although Plaintiff seeks to recover money damages, he has failed to allege an “adverse effect, ” as found under 5 U.S.C. § 552a(g)(1)(D), or “actual damages, ” as found under 5 U.S.C. § 552(a)(g)(4), from Defendant's failure to amend his records. See also Doe v. Chao, 540 U.S. 614, 620 (2004) (concluding recovery under the Privacy Act is limited to victims who have suffered adverse effects caused by intentional or willful agency action, and have sustained actual damages); see also, e.g., Haywood v. Owens, C/A No. 819-01025-JFA-JDA, 2019 WL 2292548, at *3 (D.S.C. Apr. 23, 2019) (“Additionally, to recover under the Privacy Act, a plaintiff must allege pecuniary loss; merely alleging general damages, as Plaintiff has done here, is not sufficient”), report and recommendation adopted, C/A No. 8:19-1025-JFA-JDA, 2019 WL 2284931 (D.S.C. May 29, 2019).
In addition to failing to plead an adverse effect or actual damages, Plaintiff has failed to plead that Defendant acted intentionally or willfully. See 5 U.S.C. § 552a(g)(4).
In his response to Defendant's motion to dismiss, Plaintiff seeks to address some of these concerns, providing the court with documentation in support of his claim, including his three amendment request forms that sought amendment of three medical discharge summaries to exclude, in part, references to certain mental disorders. [See ECF No. 17-2 at 1]. Review of these forms show Plaintiff sought amendment primarily because he disagreed with the medical providers' observations about him and his behavior, the medical assessment of him and his medical history, and the inclusion of allegedly inaccurate statements made by family members. See generally id.
First, Plaintiff does not address Defendant's argument that he has failed to name the correct defendant in this suit, nor has he alleged any type of loss or effect from Defendant's failure to amend his records or intentional or willful behavior on the part of Defendant. Second, Plaintiff cannot amend his pleadings in a response to Defendant's motion to dismiss, and, as stated above, has failed to plead a cognizable claim for relief under the Privacy Act. See Sadler v. Pe la Corp., 146 F.Supp.3d 734, 759 n. 13 (D.S.C. 2015) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (citations omitted).
Finally, even if the court were to consider Plaintiff's evidence, the amendment he seeks to his medical records concern primarily, if not wholly, opinions, not facts. As stated by the Fourth Circuit:
The NSA did not violate the Privacy Act by refusing to expunge the material requested by Reinbold. The Privacy Act can be used to correct facts in Reinbold's records (e.g., Reinbold's age), if those facts are recorded erroneously. However, the Privacy Act does not allow a court to alter records that accurately reflect an administrative decision, or the opinions behind that administrative decision. Accordingly, if Dr. Schmidt determined that Reinbold was paranoid and delusional, the Agencies did not err when they recorded that he reached that conclusion, even if that opinion was in error. The same rationale applies to Holt and Evers' incident reports and Healy's observations about Reinbold's behavior. These individuals' opinions may be subject to debate, but they are not subject to alteration under the Privacy Act as long as the opinions are recorded accurately.Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir. 1999) (citations omitted); see also Hass v. U.S. Air Force, 848 F.Supp. 926, 931-32 (D. Kan. 1994) (“The Privacy Act was not meant to be a vehicle for litigating the truthfulness of the underlying information contained in an accurately recorded document.”).
Finally, Plaintiff appears to dispute the undersigned's previously-docketed report and recommendation, recommending dismissal of his claims against the Judge, Superintendent, and Police Chief for lack of subject matter jurisdiction in that these claims are not so related to his claim under the Privacy Act that they form part of the same case or controversy. [See ECF No. 7]. Although Plaintiff attempts to clarify the relationship among his claims in briefing, as stated above, Plaintiff cannot amend his pleadings in response to Defendant's motion to dismiss. Additionally, Plaintiff's clarifications do not show that these claims are part of the same case or controversy of his Privacy Act claim.
Plaintiff has additionally filed an objection to the report and recommendation. [See ECF No. 9].
Plaintiff clarifies the relevant timeline of events, stating, first, he complained to the school about other drivers and received a letter from the school preventing him from accessing school grounds. Second, he attempted to resolve this issue with the Superintendent and Police Chief. Next, his wife complained about his irritability regarding the school situation to Plaintiff's medical providers, which led to those providers including some of the challenged information in his medical discharge summaries. Plaintiff asserts those summaries should be amended, at least in part, because of the determination by the Judge in his favor during the commitment hearing, although he provides no evidence or argument as to how the Judge's ruling and his request to amend relate, beyond arguing that “one determines the other.” [See ECF No. 17 at 20]. Overall, Plaintiff argues he “feel[s] it is legal and a reasonable consideration to obtain [Judge's] written ruling and order [Defendant] to amend my medical records . . . restate rights to drop off and pickup my children . . . and grant monetary relief to cover for the inconvenience, embarrassment, intentional acts, unfairness, and error in judgment.” Id.
In sum, Plaintiff has failed to state a claim against Defendant for violation of the Privacy Act.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion to dismiss. [ECF No. 13].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”