Case 2:13-cv-00423-AKK Document 21 Filed 07/30/13 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
2013 Jul-30 AM 08:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
PAUL DAVID POTTS,
Civil Action Number
Defendant Mike Bell, director of the Birmingham, Alabama Social Security
Administration (“SSA”), moves to dismiss pro se Plaintiff Paul David Potts’
complaint based on lack of subject matter jurisdiction and failure to state a claim
upon which relief may be granted. Docs. 15-16. Potts responded. Doc. 20. In
light of Potts’ failure to exhaust his administrative remedies prior to filing this
lawsuit, – specifically, failing to formally request the records from the SSA
through the Freedom of Information Act, – the court GRANTS the motion.
The court directs Potts to contact, Wendi Culver, Assistant District Manager of the
Birmingham field office of the Social Security Administration on or after August 5, 2013 at
1200 Reverend Abraham Woods, Jr. Blvd., 1 Floor - District office, Birmingham, AL 35285-
0001, or call 866-592-3734, for more information on how to formally request his records.
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I. APPLICABLE LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) authorizes a motion to dismiss
based on the defense that the court lacks subject-matter jurisdiction. “Attacks on
subject matter jurisdiction under Rule 12(b)(1) come in two forms, ‘facial’ and
‘factual’ attacks.” Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.
2003) (citation omitted). Relevant here, factual attacks challenge subject matter
jurisdiction “in fact, irrespective of the pleadings,” and the court “may consider
extrinsic evidence” in ruling on a factual challenge. Id. In such a case, “the trial
court is free to weigh the evidence and satisfy itself as to the existence of its power
to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of the jurisdictional issue.” Id. at 925
(citation omitted). However, a court may only find that it lacks subject matter
jurisdiction “if the facts necessary to sustain jurisdiction do not implicate the
merits of plaintiff’s cause of action.” Id. (citations omitted) (emphasis in original).
When a jurisdictional challenge implicates the merits of the plaintiff’s claim, the
court must “find that jurisdiction exists and deal with the objection as a direct
attack on the merits of the plaintiff’s case.” Id. (citations omitted). This ensures “a
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greater level of protection for the plaintiff who in truth is facing a challenge to the
validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or
Rule 56 . . . both of which place great restrictions on the district court’s discretion.”
Id. (citations omitted) (alterations in original).
Failure to State a Claim Upon which Relief May be Granted
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief may be granted. “To survive a
motion to dismiss, 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, 556
U.S. 662, 677, 129 S. Ct. 1937, 1949 (2009) (citations and internal quotation marks
omitted). A complaint states a facially plausible claim for relief “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility that a defendant has acted
unlawfully.” Id; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(“Factual allegations must be enough to raise a right to relief above the speculative
level . . . .” (citation omitted)). Ultimately, this inquiry is a “context-specific task
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that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 129 S. Ct. at 1950.
On a motion to dismiss under Rule 12(b)(6), the court accepts all factual
allegations as true. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000). However, legal conclusions unsupported by factual allegations
are not entitled to that assumption of truth. Iqbal, 129 S. Ct. at 1950. This
standard applies even when, as here, the plaintiff proceeds pro se – that is, without
an attorney. In such a case, although the court must construe his pleadings
liberally, see Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (citation
omitted), “this leniency does not give a court license to serve as de facto counsel
for a party, or to rewrite an otherwise deficient pleading in order to sustain an
action,” GJR Invs. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998). Indeed, “[o]nce a pro se litigant is in court, he is subject to the relevant
laws and rules of court, including the Federal Rules of Civil Procedure
.” Smith v.
Fla. Dep’t of Corr., 369 F. App’x 36, 38 (11th Cir. 2010) (citing Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). In other words, the court may not
wholly disregard the federal pleading standards and standard of review. See Brown
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v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990); see also Smith, 369 F. App’x at
II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The SSA found Potts disabled on or about September 10, 2012. Doc. 1 at 2;
doc. 15-1 at 2. In the order granting Potts SSI benefits, the administrative law
judge required Potts to designate a payee to receive the checks on Potts’ behalf.
Doc. 1 at 2; doc. 15-1 at 2. After asking one of his friends, Antonio Felder, to
serve as the payee, Potts and Felder visited the SSA office to fill out the necessary
paperwork. Doc. 1 at 2; doc. 15-1 at 2. Ultimately, the SSA appointed Felder as
Potts’ payee. Doc. 1 at 2; doc. 15-1 at 2. This lawsuit stems from Potts’
contention that the SSA should have performed a background check on Felder.
Doc. 1 at 3. Apparently, in the paperwork Felder filled out to get the payee
designation, Felder indicated that he had no felony convictions. Doc. 1 at 2; doc.
15-1 at 2. However, allegedly, Felder is a convicted felon who ultimately used
Potts’ SSI proceeds for his own personal gain. Id. In any event, Felder apparently
visited the SSA office some time later and removed himself as Potts’ payee. Id. at
4. As a result, at Potts’ request and upon certification from Potts’ doctor, the SSA
allowed Potts to receive the benefits directly. Id.
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As party of his own effort to investigate whether Felder misappropriated his
SSI benefits, Potts requested a copy of his records from the SSA. Id. Potts
contends that the SSA denied his request and stated that he could not “read nor
copy [his] records.” Id. Potts alleges that this denial was “a blatant denial of [his]
fundamental due process rights” under the “1 , 5 , 6 , and 14 Amendments of
[the] U.S. Const.” Id. Potts filed this action pro se against Mike Bell, as “the head
director” of the Birmingham, Alabama Social Security Administration, “acting
under color of, federal law,” as a motion under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The court treated the motion as a complaint, along with
amendments to the complaint in Court Document 4. Doc. 1 at 1; see docs. 4 and 6.
Potts asks this court to order Mike Bell, and presumably the SSA, to allow Potts
“to read and copy needed records” from the SSA office. Id. at 5.
Defendant challenges the lawsuit on three grounds: (1) Potts lacks subject
matter jurisdiction because he failed to exhaust his administrative remedies under
the Social Security Act, FOIA and the Privacy Act; doc. 16 at 5-6; (2) Potts failed
to state a cognizable claim; id. at 19-20; and (3) in the event the court finds that
Potts has stated a valid cause of action, that Mike Bell is an improper party and is
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entitled to qualified immunity; id. at 21-28. The court addresses the first two
Failure to Exhaust Administrative Remedies
Defendant contends that this court lacks subject matter jurisdiction because,
while this case “might properly arise under the Social Security Act, 442 U.S.C. §
401, et seq., the Freedom of Information Act (FOIA), 5 U.S.C. § 552,
or the Privacy Act, 5 U.S.C. § 522a,” Potts failed to exhaust his administrative
remedies under these statutes. Doc. 16 at 5-20. The court agrees. “The FOIA
clearly requires a party to exhaust all administrative remedies before seeking
redress in the federal courts.” Taylor v. Appleton, 30 F.3d 1365, 1367-68 (11th
Cir. 1994) (citations omitted). “This exhaustion requirement is a condition
precedent to filing suit intended to allow a federal agency to exercise its discretion
and authority, as well as create a descriptive factual record for the district court to
review if necessary.” Id. at 1368. “FOIA provides for two different types of
exhaustion, actual and constructive.” Id. “Actual exhaustion occurs when the
The court does not need to reach the immunity issue or decide whether Mike Bell is the
proper defendant since Potts’ claim fails on the first two grounds raised by Defendant.
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agency denies all or part of a party’s document request. Constructive exhaustion
occurs when certain statutory requirements are not met by the agency.” Id.
Potts’ complaint is replete with multiple deficiencies. Among other things,
Potts failed to allege that he exhausted his administrative remedies before seeking
judicial review or that he ever submitted a written request to the SSA for his
records, under the FOIA or any other statute. See generally, doc. 1. Rather, Potts
alleged that he “ask[ed]...the clerks at the S-S-I Office” to see a copy of his
records. Id. at 4. Unfortunately for Potts, verbally asking a clerk is not the same
thing as submitting a FOIA request. Moreover, to the extent Potts submitted a
FOIA request – and there is no record that he did, see doc. 15-2 at 2, Potts failed to
administratively appeal the denial of his request, as required for FOIA requests to
the SSA. See 20 C.F.R. §§ 402.200, 402.205. In sum, based on the court’s review
of the record, the court finds that Potts failed to exhaust his administrative
remedies with the SSA before filing this lawsuit. Accordingly, this court does not
have subject matter jurisdiction over Potts’ request for his records pursuant to
FOIA, or, for that matter, the SSA, or the Privacy Act. 3
While Potts does not explicitly allege a violation of the Privacy Act or the Social
Security Act, Defendant contends that Potts’ claims, if any, under these statutes also fail because
Potts failed to exhaust his administrative remedies. Doc. 16 at 5-16. The court agrees. See 5
U.S.C. § 552a(b) and 20 C.F.R. § 416.1400(a).
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Defendants also contend that “[a]lthough Plaintiff asserts . . . violat[ions]
[of] his rights under the First, Fifth, Sixth, and Fourteenth Amendments, he failed
to explain how any alleged wrongful actions by Defendant were constitutional
violations.” Doc. 16 at 20. Unfortunately for Potts, his response stating that
“Plaintiff has a (sic) Equal Protection righ[t] to have access to his records,” doc. 20
at 1, does not address the flaws in his pleading. Moreover, based on Potts’
allegations, no such right exists for him under the Equal Protection clause of the
Fourteenth Amendment, which provides that “[n]o State shall ... deny to any
person within its jurisdiction the equal protection of laws.” U.S. Const. Amend.
XIV, § 1. Here, Potts failed to allege that a state treated him differently or unfairly
as compared to others. See doc. 1. Rather, Potts’ claims concern his individual
denial of his SSA record and is against an individual or a federal agency. See id.
Accordingly, Potts’ Equal Protection claim fails.4
Regarding Potts’ due process claim, see doc. 1 at 4, the court finds that
Defendant and the SSA did not deny Potts’ due process rights. Rather, based on
the record before this court, Potts failed to pursue the proper administrative
Potts also “invokes jurisdiction under the Americans with Disabilities Act” in his
responsive brief. Doc. 20 at 1. However, Potts failed to allege this claim in his complaint or
amendments, see docs. 1 and 4, and has provided no facts to support a claim under the ADA.
Accordingly, Potts’ ADA claim fails.
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channels to request a copy of his records. Consequently, Defendant and the SSA
have not formally denied him his records. Given that Potts is still free to request
his records in writing under the FOIA, the Privacy Act, or the SSA, Defendant has
not violated his due process rights. See Morton v. Astrue, 380 F. App’x 892, 894
(11th Cir. 2010) (“[t]he essential requirements of due process ... are notice and an
opportunity to respond.”) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
Likewise, Potts has failed to allege any facts to support his claims under the
First, Fifth, and Sixth Amendments. As Defendant correctly noted, “the mere
allegation that Plaintiff’s constitutional rights have been violated is not enough.”
Doc. 16 at 20 (citing Stewart v. Astrue, 5:08-CV-90-OC-10GRJ, 2008 WL
3982690 (M.D. Fla. Aug. 26, 2008) and Jones v. Dep’t of Health & Human Servs.,
941 F.2d 1529, 1533 (11th Cir. 1991)). Again, legal conclusions unsupported by
factual allegations are not entitled to the assumption of truth. See Iqbal, 129 S. Ct.
at 1950. Accordingly, the court finds that Potts has failed to state valid claims
under the First, Fifth, Sixth, and Fourteenth Amendments.
In short, unfortunately, Potts failed to exhaust his administrative remedies
prior to filing this lawsuit. Therefore, his lawsuit is premature. As a result, the
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court GRANTS the motion to dismiss, doc. 15, and this action is hereby
DISMISSED without prejudice to Potts refiling after exhausting his
administrative remedies. The court will enter a separate Order, consistent with this
Memorandum Opinion, dismissing this action.
Done the 30th day of July, 2013.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE