Opinion
Civil Action 2:24-cv-249
07-11-2024
Edward J. Latimer and John F. Latimer, Plaintiffs, v. United States Department of Defense, Defendant.
ORDER AND REPORT AND RECOMMENDATION (DOC. 1)
Kevin J. Doyle . United States Magistrate Judge
Self-represented Plaintiff Edward J. Latimer filed an Application for Leave to Proceed in forma pauperis (IFP) and a proposed Complaint under the Federal Tort Claims Act (FTCA) and the Eighth Amendment against the United States Department of Defense (DoD), alleging that the DoD is liable for adverse health effects experienced by his late father when he was exposed to toxic chemicals during military service in the 1960s at Fort Devens in Massachusetts. (Docs. 1, 1-2.) The Complaint requests $300 million in compensatory damages and $13 million in punitive damages from the DoD.
Liberally construing the Complaint, the Court has determined that Plaintiff is alleging federal claims under the FTCA (Doc. 1 at 4, 5, 6, 9) and the Eighth Amendment (id. at 3), and a state-law claim under the “Massachusetts Wrongful Death Act” and “Vermont statute” (id. at 6).
The Court grants Plaintiff Edward J. Latimer's request to proceed IFP and denies Plaintiff John F. Latimer's request to proceed IFP. For the reasons explained below, I recommend that the Court dismiss this action without prejudice.
I. Application for Leave to Proceed in Forma Pauperis
After review of the affidavit submitted by Plaintiff Edward J. Latimer, the Court grants the request to proceed without prepayment of fees as to him. However, to the extent that John F. Latimer is also requesting to proceed without prepayment of fees, the Court denies the request because only Edward J. Latimer has signed the proposed Complaint and only Edward J. Latimer has filed a signed affidavit attesting to his financial eligibility for IFP status.
II. Dismissal of the Proposed Complaint
The Court must dismiss an IFP Complaint that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). The Court must also dismiss a Complaint when the Court lacks subject matter jurisdiction over the asserted claims. See Fed.R.Civ.P. 12(h)(3). Nevertheless, the Court must construe pro se pleadings liberally and interpret them to raise the “strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
A. Sovereign immunity bars Plaintiff's claims.
The doctrine of sovereign immunity bars Plaintiff's claims against the DoD. Under this doctrine, federal courts may not hear suits against the federal government and its agencies unless sovereign immunity has been waived. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is essentially a suit against the United States, such suits are . . . barred under the doctrine of sovereign immunity, unless such immunity is waived.”).
The Federal Tort Claims Act, 28 U.S.C. § 2671-80 (FTCA), provides a waiver of sovereign immunity for certain damages claims arising from tortious conduct of federal employees “acting within the scope of [their] office or employment.” 28 U.S.C. § 1346(b)(1). However, there are exceptions to waiver of sovereign immunity under the FTCA. The Supreme Court held in Feres v. United States, 340 U.S. 135, 146 (1950) that the FTCA does not waive sovereign immunity for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Liberally construing Plaintiff's claims that his father was negligently exposed to toxins during active-duty service at Fort Devens, such claims are barred by the Feres doctrine and should be dismissed.
Even assuming that the Feres doctrine does not bar this lawsuit, a plaintiff may not bring an FTCA claim in federal court unless he has complied with the FTCA's procedural requirements. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999), abrogated on other grounds, United States v. Wong, 575 U.S. 402 (2015). Prior to filing a claim in federal court under the FTCA, a plaintiff must first exhaust administrative remedies through the filing of a claim for damages with the relevant federal agency and receipt of a final written determination. See 28 U.S.C. § 2675(a). Plaintiff's Complaint does not include any facts indicating that he filed an administrative claim under the FTCA with the DoD for damages and thereafter received a final written determination before initiating this action.
Therefore, to the extent that Plaintiff is requesting relief under the FTCA, the Court should dismiss the claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(iii) (providing that the court shall dismiss the case if the court determines that the action “seeks monetary relief against a defendant who is immune from such relief”).
B. Plaintiff may not bring an administrative tort claim against the Department of Defense in federal court.
The allegations in Plaintiff's Complaint suggest that he is attempting by this action to bring an administrative claim under the FTCA regarding his father's alleged injuries, rather than pursue a judicial action. Specifically, his request for relief states: “Petitioner[s] are filing a[n] administrative claim[] [ . . .] FTCA for damages.” (Doc. 1-2 at 9.) The Complaint further states: “This office has authority to investigate, an[d] in some case[s] adjudicate [and/or] settle claims.” (See id. at 5.) The governmental agency alleged to be responsible for the claimed injuries, not a federal court, is the appropriate forum for potential investigation of a tort claim against the government. Therefore, this matter is not properly in this Court and should be dismissed.
Plaintiff's Complaint also refers to the “PACT Act” (Doc. 1-2 at 7), which is a recent federal law extending VA health care benefits to veterans exposed to toxins during service. The PACT Act also appears to authorize compensation to eligible surviving family members of a veteran who died from a service-related disability related to toxic exposure. See www.va.gov/resources/the-pact-act-and-your-va-bemfits/ (last visited July 9, 2024). However, a family member seeking such benefits is required to apply directly to the VA. See id.
C. Plaintiff may not bring a potential Bivens claim directly against the Department of Defense.
A plaintiff may bring a cause of action for deprivations of federally protected rights by persons acting under color of state law. See 42 U.S.C. § 1983. As Plaintiff appears to allege that the DoD, a federal agency, deprived his father of his federally protected rights under the Eighth Amendment (Doc. 1-2 at 3), he may be alleging potential claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). It is well settled, however, that a plaintiff cannot plead a Bivens action directly against a federal agency. FDIC v. Meyer, 510 U.S. 471, 486 (1994). Plaintiff names only the Department of Defense as the defendant; he does not name any individuals responsible for the allegedly tortious conduct.
Therefore, to the extent that Plaintiff may be asserting a Bivens claim against the DoD, I recommend that the claim be dismissed.
To the extent that Plaintiff may be asserting a Bivens claim for constitutional injuries to his deceased father, he also lacks standing to bring such a claim. See Griffin v. Doe, 71 F.Supp.3d 306, 316-17 (N.D.N.Y. 2014) (finding that plaintiff did not have standing to sue under Bivens for constitutional injuries allegedly suffered by her deceased daughter without any allegations that plaintiff's own constitutional rights were violated).
III. Leave to Amend
The Second Circuit has cautioned that a court “should not dismiss a pro se complaint without granting leave to amend at least once, unless amendment would be futile.” Garcia v. Super. of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (per curiam) (internal quotation marks omitted). Plaintiff's potential Bivens claims and FTCA claims against the DoD may not proceed for the reasons stated above. It is not clear from the Complaint whether Plaintiff is attempting to bring a tort claim against a federal agency without first exhausting the claim at the administrative level (in which case the claim would be barred); whether Plaintiff is attempting to exhaust administrative remedies by means of this lawsuit (in which case federal court is not the proper forum); or whether Plaintiff is filing this lawsuit after receiving a final written determination from the agency as to the claims raised here (which appears unlikely because Plaintiff has not alleged receipt of such a final determination, and in any event his claims are likely time-barred). Mindful of a court's obligation to liberally construe Complaints filed by self-represented plaintiffs and to provide at least one further opportunity to state a claim after dismissal of a Complaint, I recommend that the Court dismiss the Complaint without prejudice.
The Complaint states that Plaintiff's father died on July 27, 1963, and that his death was aggravated by his alleged exposure to toxins at Fort Devens. (Doc. 1-2 at 3.) Claims under the FTCA are subject to a two-year statute of limitations. 28 U.S.C. § 2401; Anderson v. Greenlee, No. 5:22-cv-176, 2023 WL 2895645, at *3 (D. Vt. Jan. 11, 2023). Therefore, Plaintiff's claims appear barred by the statute of limitations.
Conclusion
Plaintiff Edward J. Latimer's Application for Leave to proceed in forma pauperis is GRANTED for purposes of filing only. For the reasons discussed above, I recommend that Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is respectfully requested to assign this matter to a United States
District Judge for consideration of this Report and Recommendation.
Any party may object to this Report and Recommendation within fourteen days after service thereof, by filing with the Clerk of the Court and serving on the Magistrate Judge and all parties, written objections that shall specifically identify those portions of the Report and Recommendation to which objection is made and the basis for such objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); L.R. 72(c). Failure to timely file such objections “operates as a waiver of any further judicial review of the magistrate's decision.” Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (quoting Small v. Sec'y of Health & Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989)).