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Terio v. Johann

September 29, 2006

VINCENT TERIO, PLAINTIFF,
v.
MICHAEL JOHANN, SECRETARY OF AGRICULTURE (USDA"), ROBERT DOAR, COMMISSIONER NEW YORK STATE OF TEMORARY DISABILITY ASSISTANCE ("OTDA"), AND CATHERINE TOMPKINS, PUTNAM COUNTY DEPARTMENT OF SOCIAL SERVICES ("PCDSS") DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION and ORDER

On July 28, 2005, Plaintiff filed an Amended Complaint against Michael Johann, Secretary of Agriculture; Robert Doar, Commissioner of the New York State Office of Temporary and Disability Assistance ("OTDA"); OTDA; and Catherine Tompkins, Putnam County Department of Social Services (the "County Defendant"); as defendants.*fn1 (Am. Compl. ¶¶ 8-11.) The Complaint alleges that Defendants violated 42 U.S.C. § 1983 by failing to give Plaintiff a hearing within sixty days after his request following denial of his public assistance applications and demands for declaratory and injunctive relief. (Am. Compl. ¶ 12.)*fn2 Plaintiff alleges that he did not receive a timely fair hearing on his claim for Temporary Assistance and had not received any fair hearing with respect to his Food Stamp Application. Plaintiff asserted that this violates 7 C.F.R. § 271.1(o),*fn3 which provides that a "[p]rompt, definitive and final administrative action must be taken by the state agency within 60 days of any request of a hearing." (7 C.F.R. § 271.1(o).) Plaintiff further alleges violations of his Fourteenth Amendment guarantees of due process and equal protection.*fn4 (Am. Compl. ¶¶ 24-25.)

On October 3, 2005, Defendants filed motions to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On October 18, 2005, Plaintiff responded by filing a Notice of Cross Motion for summary judgment with a supporting Affidavit. (Notice of Cross Motion and Opposition Papers).

For the following reasons, Defendants' motions to dismiss the complaint are granted, and Plaintiff's Cross-Motion is denied as moot.

I. BACKGROUND

Plaintiff is a 75-year-old man living alone who receives $707 of Social Security Disability Income monthly. (Am. Compl. ¶ 7, 16.) In late 2004, he made two separate applications for public assistance: one for Temporary Assistance on November 30, 2004*fn5 , and one for Food Stamps on December 1, 2004.

On March 24, 2005, Plaintiff's application for Temporary Assistance was "Not Approved" by the County Defendant "because [Plaintiff's] countable income of $785.20 is more that the 'PA' limit of $775.83 monthly for a household of 1." (Id. Ex. 4.) On March 28, 2005, well before the deadline of May 23, Plaintiff promptly submitted a "Request For a Fair Hearing" to the New York State Office of Temporary and Disability Assistance ("OTDA") for review of the initial decision. (Id.) Plaintiff alleges that despite his timely request, "the administrative scheduling unit refused to schedule a fair hearing . . . ." (Id. ¶ 13.) Plaintiff finally received a hearing on the denial of his application for Temporary Assistance on June 17, 2005. The OTDA judge decided that Plaintiff committed an intentional program violation by providing false information on his application. (Id. Ex. 6 at 5.) Specifically, the judge found that on his application Plaintiff had deliberately and intentionally "responded 'NO' to the question [whether] he had ever been found guilty of and/or been disqualified for Temporary Assistance and/or Food Stamp benefits because of fraud/intentional program violation" ("IPV") when he had previously committed three Food Stamp IPVs. (Id. at 4-5.) This preliminary finding relied on a decision issued on May 31, 2002 in which the State Commissioner permanently disqualified Plaintiff from participating in the Food Stamp program after his third IPV*fn6 i.e. knowingly making a false statement in an attempt to receive assistance to which he was not entitled. (Id. at 4); On June 28, 2005, the State Commissioner affirmed the OTDA's decision denying Plaintiff's application for Temporary Assistance and directed the Agency to disqualify Plaintiff from receiving Temporary Assistance for six months pursuant to 18 N.Y.C.R.R. 359.9(a). (Id.)

Separately from his Temporary Assistance application, Plaintiff applied for Food Stamps on December 1, 2004. (Am. Compl. ¶ 12.) After having his Food Stamp application denied, Plaintiff placed a request on January 11, 2005 for a fair hearing with OTDA. (Id. ¶ 12; Ex. 3.) Acknowledgment of Plaintiff's fair hearing request -- including notice that "the state commissioner has not directed the local district to continue [his] assistance unchanged pending the outcome of the fair hearing decision" -- was sent to Plaintiff on January 13, 2005. (Id. ¶ 12.)

The State Commissioner's opinion on June 28, 2005 does not relate to Plaintiff's December 1, 2004 application for Food Stamps.

Plaintiff sues claiming that he is being denied a timely fair hearing on his claim for Temporary Assistance and on his Food Stamp claim in violation of 42 U.S.C. § 1983 under the Food Stamp Act ("FSA") and its regulations. Plaintiff further claims that he has been denied Food Stamp, Public Assistance, and Medicare benefits from 1997 through 2005, and requests retroactive damages. (Am. Compl. ¶ 30.)

II. DISCUSSION

A. Standard of Review

Defendants filed motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6).

When considering a motion under Rule 12(b)(6), the Court must "constru[e] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable references in the plaintiff's favor." Chambers v. Time Warner, 282 F.3d 147, 152 (2d Cir. 2002) (citations omitted). Dismissal pursuant to Rule 12(b)(6) is appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). Accordingly, the Court should "merely . . . assess the legal feasibility of the complaint [and not] . . . assay the weight of the evidence which might be offered in support thereof." Eternity Global Master Fund Ltd. V. Morgan Guar., Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004) (internal quotations omitted).

A court may consider other documents "where the complaint 'relies heavily upon [their] term[s] and effect[s],' which renders the document[s] 'integral' to the complaint." Chambers, 282 F.3d at 153, quoting Int'l. Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1991). These documents may include attached exhibits ...


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