Opinion
5:22-CV-119-M
10-31-2022
WILLIAM LESLIE BARRETT, SR., Plaintiff, v. USA VETERANS ADMINISTRATION, MERRICK GARLAND, and MICHAEL F. EASLEY, Defendants.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion to dismiss of the United States for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), or alternatively for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). [DE-6]. Plaintiff, proceeding pro se, was provided with notice of the motion and given an opportunity to respond, [DE-8], but has failed to do so. The issues raised are ripe for review, and the motion has been referred here for recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Local Civ. R. 72.3(c). For the reasons set forth below, it is recommended that the motion to dismiss be allowed, and the complaint be dismissed for lack of subject matter jurisdiction.
I. Standard of Review
a. Rule 12(b)(1)
A court must dismiss all or part of an action over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Whether subject matter jurisdiction exists is a threshold question that must be addressed before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); see also Fed.R.Civ.P. 12(h)(3) (“if the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The plaintiff, as the party opposing a Rule 12(b)(1) motion to dismiss, has the burden of proving that subject matter jurisdiction does, in fact, exist. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (citations omitted).
Amotion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge[ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79. .
Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4 th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits, and the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. Discussion
The facts alleged in the complaint, construed in the light most favorable to Plaintiff, are as follows. Plaintiff received benefits, including health care, from the Departments of Veterans Affairs (the “VA”). A VA hospital intentionally cut off Plaintiff's hand, cut out ribs, and administered unnecessary chemotherapy. Plaintiff was assigned a 40% disability rating by the VA, and later received a mental health diagnosis, which Plaintiff characterizes as the VA's “crazy claim.” Plaintiff contends the “crazy claim” cost him access to insurance, school, sterile payments, and court cases. Plaintiff also contends the VA, during President Ronald Reagan's administration, attempted to erase Plaintiff and all his benefits, and he was denied Social Security benefits, citing Barrett v. USA-Social Security, No. 5:10-CV-469-BO [DE-30] (EDNC) (dismissing for failure to state a claim Barrett's complaint alleging that the Social Security Administration said he was crazy and “switched [his] disability from his hand to [his] head.”). Finally, Plaintiff alleges that on January 13, 2022, he was informed that his VA administrative claim was “complete, and all remaining issues were for Federal Court.” Plaintiff seeks monetary damages ranging from $12,000,000 to $36,000,000, depending on the length of time necessary to prevail in his case. Compl. [DE-1] at 2-3.
a. VA Benefits Claims
The Government first argues that to the extent Plaintiff seeks to hold the VA liable for allegedly blocking access to VA benefits, e.g., insurance, educational benefits, and “sterile payments,” based on a mental illness diagnosis, the court lacks subject matter jurisdiction over such a claim. Defs.' Mem. [DE-7] at 4-5. The court agrees that to the extent Plaintiff's complaint is construed to assert a claim for entitlement to VA benefits and a review of the VA's benefit-related determinations, the court lacks subject matter jurisdiction over such claims.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Congress, in the Veterans' Judicial Review Act (“VJRA”), Pub. L. No. 100-687, 102 Stat. 4105 (1988), “established a multi-tiered framework for the adjudication of claims regarding veterans benefits.” Howell v. United States, No. 5:14-CV-00898-F, 2015 WL 7459848, at *2 (E.D. N.C. Nov. 24, 2015) (citation omitted), aff'd, 668 Fed.Appx. 28 (4th Cir. 2016). The Fourth Circuit Court of Appeals in Hairston v. DVA, Reg'l VA Off. Martinsburg, found that “[f]ederal district court review of benefits determinations by the VA is precluded by the Veterans' Judicial Review Act,” and concluded that the district court could not review the VA's determination regarding entitlement to benefits. 841 Fed.Appx. 565, 569-70 (4th Cir. 2021). The Hairston court explained that the plaintiff was not without a remedy for his alleged injuries but was required to utilize the process set forth in the VJRA rather than seeking relief in the district court:
The Secretary of the VA, as mandated by statute, decides “all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. § 511(a). Subject to some exceptions not relevant here, see id. § 511(b), such decisions by the Secretary may only be reviewed on appeal by the Board of Veterans' Appeals, a VA administrative body, id. § 7104(a), and then by the United States Court of Appeals for Veterans Claims, an Article I court with “exclusive jurisdiction to review decisions of the Board of Veterans' Appeals,” id. § 7252(a). Decisions by the Court of Appeals for
Veterans Claims may be appealed only to the Federal Circuit. Id. § 7292(a), (c).
Congress made clear that this specialized review process is also an exclusive one. Beyond this narrow route, federal courts generally are barred from hearing challenges to benefits determinations. The Secretary's decisions on “all questions of law and fact” relevant to “the provision of benefits” are “final and conclusive and may not be reviewed by any other official or by any court” beyond the statutorily prescribed appeals process. Id. § 511(a). The upshot, as we have explained, is that federal district courts lack jurisdiction to review VA decisions that “affect the provision of the benefits awarded by the VA.” Butler v. United States, 702 F.3d 749, 753 (4th Cir. 2012) (citation omitted).Id. at 570. Therefore, to the extent Plaintiff asks the court to find the VA wrongfully denied him VA benefits, e.g., insurance, educational benefits, and “sterile payments,” based on his mental health diagnosis, the district court lacks subject matter jurisdiction over such a claim. See Howell, 2015 WL 7459848, at *3 (finding the VJRA precluded the court from exercising subject matter jurisdiction over a claim seeking compensation for personal injury and property damage arising from a denial of VA benefits after the plaintiff was diagnosed with schizophrenia). Accordingly, it is recommended that any claim for review of the VA's benefits determination as to Plaintiff be dismissed.
b. FTCA Claims
The Government next argues that to the extent Plaintiff asserts a tort claim, based on negligent diagnosis or claims processing, the court lacks jurisdiction because Plaintiff failed to exhaust his administrative remedies by presenting an administrative claim to the VA. Defs.' Mem. [DE-7] at 5-8. The court agrees that it lacks jurisdiction over such a tort claim because Plaintiff has failed to exhaust administrative remedies as required by the Federal Tort Claims Act (“FTCA”).
The FTCA provides for a limited waiver of sovereign immunity that permits a plaintiff to sue the United States for certain negligent conduct of its employees. 28 U.S.C. § 2671, et seq.; see Millbrook v. United States, 569 U.S. 50, 52 (2013); Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011). When a claim is cognizable under the FTC A, it provides the exclusive remedy. Burrows v. United States, 120 Fed.Appx. 448, 449 (4th Cir. 2005) (citing 28 U.S.C. § 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994)). However, before a plaintiff may bring an FTC A claim in federal court, the plaintiff “must first present his tort claim to the appropriate federal agency and receive notice of denial of the claim by that agency . . . Martin v. Comer, No. 5:21-CT-3049-FL, 2022 WL 3443702, at *2 (E.D. N.C. Aug. 3, 2022) (citing 28 U.S.C. § 2675(a)). The “presentment requirement is a jurisdictional prerequisite to institution of a tort action under the FTCA.” Id. at *3 (citing McNeil v. United States, 508 U.S. 106, 111, 113 (1993); Plyler v. United States, 900 F.2d 41,42-43 (4th Cir. 1990)). Thus, the court lacks jurisdiction to consider an FTCA claim when the plaintiff has failed to exhaust administrative remedies. See Buck v. United States Dep't of Just., No. 5:19-CT-3100-FL, 2022 WL 945584, at *4 (E.D. N.C. Mar. 29, 2022) (citing Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir. 1994)).
To the extent Plaintiff alleges intentional torts, such as assault or battery, based on his allegation that the VA hospital intentionally cut off his hand, cut out ribs, and unnecessarily administered chemotherapy to him, Compl. [DE-1] at 2, the FTCA does not waive immunity from suit for such claims. The FTCA's intentional torts exception provides that the United States retains immunity in cases involving “[a]ny claim arising out of assault[ or] battery,” 28 U.S.C. § 2680(h), and, thus, Plaintiff has failed to state a claim based on the alleged intentional conduct. See Saylon v. United States, No. 5:20-CV-176-FL, 2021 WL 3160425, at *5 (E.D. N.C. July 26, 2021) (dismissing plaintiff's claims for medical negligence and intentional torts, stemming from care provided at a veterans hospital, for failure to state a claim because the FTCA's intentional tort exception preserved the Government's immunity for such claims).
Plaintiff alleges that on January 13,2022, he was informed that his VA administrative claim was “complete, and all remaining issues were for Federal Court.” Compl. [DE-1] at 2. To the extent this allegation could be liberally construed as asserting that Plaintiff has exhausted his administrative remedies with the VA, the Government challenges that assertion through a declaration from Deputy Chief Counsel in the Torts Law Group in the Office of General Counsel at the VA, stating that a search of the VA's national database revealed no record of a tort claim filed by Plaintiff. See Kirchhoefer Decl. [DE-7-1]. Plaintiff did not respond to the Government's evidence, and his complaint did not include a copy of either his administrative claim or any documentation from the VA related to such a claim. As stated above, “[i]n determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768 (citations omitted).
The Government has presented persuasive evidence to counter Plaintiff's allegation implying that he exhausted his administrative remedies with the VA, and Plaintiff failed to respond despite having the opportunity to do so. See Buck, 2022 WL 945584, at *3 (noting that the court may consider matters outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, rejecting plaintiff's argument that discovery was necessary on administrative exhaustion because the plaintiff would have personal knowledge of whether he filed an administrative tort claim, and finding the plaintiff failed to exhaust his FTCA administrative remedies where he failed to offer any evidence suggesting he filed an administrative claim). Based on the evidence presented by the Government and Plaintiff's failure to present any contrary evidence, the court finds that Plaintiff has failed to exhaust his FTCA administrative remedies and the court lacks subject matter jurisdiction over any FTCA claim. Accordingly, it is recommended Plaintiff's FTCA claim be dismissed.
Finally, the Government alternatively argues that Plaintiff's complaint fails to state a plausible claim for relief and should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). However, because the court lacks subject matter jurisdiction over Plaintiff's claims, the matter is properly dismissed without prejudice under Fed.R.Civ.P. 12(b)(1), and the court cannot reach the merits. See Beazer E., Inc. v. U.S. Navy, 111 F.3d 129 (4th Cir. 1997) (“If a court does not have subject matter jurisdiction over a claim, it can only dismiss without prejudice; it cannot reach the merits.”) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (“A court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ..”).
III. Conclusion
For the reasons stated herein, it is recommended that Plaintiff's complaint be dismissed without prejudice for lack of subject matter jurisdiction.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until November 14, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days after service of the objections on the responding party.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).