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Conyers v. United States Department of Veterans Affairs

United States District Court, E.D. New York

February 26, 2018

VINCENT CURTIS CONYERS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          ORDER

          JOSEPH F. BIANCO UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Vincent Curtis Conyers ("plaintiff) brings this action against the United States Department of Veterans Affairs ("defendant" or "the VA") for violations of the Privacy Act of 1974("the Privacy Act"), 5 U.S.C. § 552a et seq. Plaintiff s claims relate to the V A's collection, maintenance, and disclosure of his records in determining whether to grant his application for Vocational Rehabilitation and Employment benefits. On May 19, 2017, defendant moved to dismiss plaintiffs first amended complaint[1] under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and, alternatively, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 48.) On October 18, 2017, the Court referred the motion to the Honorable Steven I. Locke. (ECF No. 54.)

         Presently before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Locke advising the Court to dismiss the first amended complaint in its entirety, with leave to amend the sixth, seventh, and eighth causes of action. (ECF No. 55.) More specifically, Magistrate Judge Locke concluded that the Court lacks subject matter jurisdiction over the first, second, third, fourth, and fifth causes of action. (R&R at 15-22.) Thus, Magistrate Locke recommends that those claims be dismissed without leave to re-plead, as any amendment would be futile. (R&R at 26.) With respect to the six, seventh, and eighth causes of action, Magistrate Judge Locke concluded that the Court has subject matter jurisdiction over those claims, but that they are insufficiently pled under Rule 12(b)(6). (R&R at 22-26.) Judge Locke recommends that plaintiff be granted leave to amend those claims. (R&R at 26-27.) For the reasons explained below, after a de novo review, the Court adopts the thorough and well-reasoned R&R in its entirety.

         I. Standard of Review

         A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y. 1988). As to those portions of a report to which no "specific written objections" are made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Am, 474 U.S. 140, 149 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). When "a party submits a timely objection to a report and recommendation, the district judge will review the parts of the report and recommendation to which the party objected under a de novo standard of review." Jeffries v. Verizon, 10-CV-2686 (JFB) (AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").

         II. Objections to the R&R

         Defendant submitted objections to the R&R on February 12, 2018. (ECF No. 57.) Defendant objects only to the recommendation that the Court grant plaintiff leave to amend the sixth, seventh, and eighth causes of action.

         Plaintiff submitted objections to the R&R on February 13, 2018. (ECF No. 58.) Plaintiff objects to Magistrate Judge Locke's conclusions that the Court lacks subject matter jurisdiction over the first, second, third, fourth, and fifth causes of action and that those claims should be dismissed without leave to amend.[2] Plaintiff does not raise objections to Magistrate Judge Locke's recommendations that the sixth, seventh, and eighth causes of action be dismissed for failure to state a claim, with leave to amend.

         III. Analysis

         Having reviewed the full record and the applicable law, and having reviewed the R&R de novo, the Court adopts the thorough and well-reasoned R&R in its entirety.

         A. First through Fifth Causes of Action

         The Court agrees with Magistrate Judge Locke's conclusion that the Court lacks subject matter jurisdiction over the first, second, third, fourth, and fifth causes of action, and that those claims should be dismissed without leave to amend.

         Plaintiffs first cause of action seeks injunctive relief under Section 552a(d)(1) of the Privacy Act, which obligates an agency to provide an individual with his record upon request. Magistrate Judge Locke concluded that this claim is moot because the VA has provided plaintiff with his record. (R&R at 18.) Plaintiffs corresponding objections simply restate his arguments in opposition to defendant's motion to dismiss-each of which was thoroughly, and correctly, considered by Magistrate Judge Locke. The Court thus adopts the recommendation that the first claim be dismissed without leave to amend, as plaintiff cannot state a claim to obtain records in his possession.

         Plaintiffs second cause of action seeks an amendment to his record under Section 552a(d)(2) of the Privacy Act. However, the Privacy Act establishes specific procedures that an individual must follow before he may bring a civil claim to amend an agency record. See 5 U.S.C. § 552a(d). Specifically, an individual must request an amendment and, if the request is denied, request that the agency review that denial. Id. An individual may bring a civil action only after the agency either "makes a determination ... not to amend an ...


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