United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter comes before the court on frivolity review of
plaintiff's pro se complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge James E. Gates entered a
memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss in part
plaintiff's claims and allow certain claims asserted
under the Privacy Act of 1974, 5 U.S.C. § 552a, to
proceed. Plaintiff timely filed objections to the
M&R, accompanied by several supporting documents. (DE
53). In this posture, the issues raised are ripe for ruling.
For the reasons stated herein, the court adopts the M&R.
initiated this action by filing a motion for leave to proceed
in forma pauperis (“IFP”) on February 11, 2016,
accompanied by proposed complaint. Plaintiff asserts claims
against defendants for violations of the Federal Information
Security Management Act, 44 U.S.C. § 3541 et
seq. (“FISMA”), as amended by the Federal
Information Security Modernization Act fo 2014, Pub. L. No.
113-283, 40 U.S.C. § 11331, and the Privacy Act of 1974,
5 U.S.C. § 552(a) (the “Privacy Act”), which
all arise from defendants involvement in her alleged identity
theft and the subsequent concealment thereof. Plaintiff seeks
compensatory damages, reinstatement of her survivor's
benefits and certain other medical benefits, issuance of a
new government identification card, and trial by jury. The
court incorporates herein the background description of the
case set forth in the M&R. (DE 52 at 2-5).
11, 2017, the magistrate judge granted plaintiff's IFP
petition and issued an M&R, recommending dismissal of all
claims asserted under FISMA and 40 U.S.C. § 1131 for
lack of subject matter jurisdiction. With respect to
plaintiff's Privacy Act claims, the magistrate judge
recommends dismissal of all such claims against the
individual defendants and all claims against the agency
defendants, which seek to challenge the substantive decisions
made with respect to the various benefits at issue, for lack
of subject matter jurisdiction. The magistrate judge also
recommends dismissing all remaining Privacy Act claims aginst
defendants United States Army Installation Command
(“Installation Command”) and Defense Finance and
Accounting Services (“DFAS”). The magistrate
judge recommends allowing plaintiff's remaining Privacy
Act claims against defendant OPM, the Outreach Center, the
DMDC, the APO, and the ID Card Facility to proceed. Plaintiff
filed objections to the M&R on July 26, 2017, challenging
the magistrate judge's determinations concerning its
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may
dismiss an action that is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
complaint may be found frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Additionally, a
complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” sufficient to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). In evaluating
whether a claim has been stated, “[the] court accepts
all well-pled facts as true and construes those facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement [, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted).
objects primarily to the M&R's recommendation that
her claims against the individual defendants, the
Installation Command, and the DFAS be dismissed. As set out
in the M&R, the court lacks jurisdiction over
plaintiff's claims for violation of FISMA and 40 U.S.C.
§ 11331, where such laws do not provide for a private
right of action. The court also lacks jurisdiction over
plaintiff's Privacy Act claims against the individual
defendants and certain Privacy Act claims against the agency
defendants for lack of subject matter
jurisdiction. To the extent any claims remain against
defendants Installation Command and DFAS, the magistrate
judge properly concludes that such claims should be dismissed
for failure to state a claim.
plaintiff's objections include new factual material, her
objections are general and reiterate her grievances with
various parties. (See e.g., DE 53, p. 1) (“The
plaintiff has sent in countless documents to prove . . .
Privacy Act [v]iolations against the [d]efendants.”).
Importantly, plaintiff's objections do not expressly
dispute the magistrate judge's conclusions regarding
subject matter jurisdiction. Although plaintiff's
objections include new factual material, they repeat her
prior arguments. (See DE 51). Furthermore, the
additional facts asserted in plaintiff's objections are
insufficient to cure defects in her Privacy Act claims
against defendants Installation Command and DFAS.
novo review of the M&R and the record in this case, the
court adopts the determinations of the M&R regarding
claims against these parties as its own. Pursuant to 28
U.S.C. § 1915(e)(2)(B), plaintiff's FISMA and 40
U.S.C. § 11331 claims, as well as certain Privacy Act
claims must be ...