Opinion
EP-23-CV-00319-KC-RFC
07-30-2024
MICHAEL C. SMART, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
ROBERT F. CASTANEDA UNITED STATES MAGISTRATE JUDGE.
Before the Court is Defendant United States of America's “Motion to Dismiss Second Amended Complaint” (“Motion”) (ECF No. 52), filed on June 18, 2024. This case was assigned to United States District Judge Kathleen Cardone and referred to the undersigned Magistrate Judge pursuant to Judge Cardone's Standing Order Regarding Civil Case Assignments. For the following reasons, the Court recommends that Defendant's Motion be GRANTED.
I. BACKGROUND
Plaintiff Michael C. Smart states that he has been receiving mental health treatment for post-traumatic stress disorder (“PTSD”) from the Department of Veterans Affairs (“VA”) for approximately eight years. Am. Compl. ¶ 14 [hereinafter Second Am. Compl.], ECF No. 46. Plaintiff received treatment, including prescription medication, from a nurse practitioner named Ray Leal. Id. In 2021 or 2022, Leal informed Plaintiff that he would no longer be able to treat Plaintiff. Id. ¶ 15. Leal explained that this was because he had not been receiving payment from the VA for Plaintiff's treatment for the past eight years. Id. Plaintiff's PTSD symptoms worsened for the next two months without mental health treatment or medication. Id.
The operative complaint is Plaintiff's Second Amended Complaint; his previous two complaints alleged a claim of intentional infliction of emotional distress against Defendant under the Federal Torts Claim Act (“FTCA”). See Compl., ECF No. 3-1; Am. Compl., ECF No. 17. The operative complaint alleges a claim against Defendant for medical negligence, also under the FTCA. Second Am. Compl. ¶¶ 17-23. Defendant has filed a motion to dismiss Plaintiff's Second Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot., ECF No. 52.
II. STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
The Federal Rules of Civil Procedure allow a party to file a motion to dismiss based on lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When a 12(b)(1) motion is filed in conjunction with other motions to dismiss, a court should consider the 12(b)(1) motion first. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “When ruling on the motion, the district court may rely on the complaint, undisputed facts in the record, and the court's resolution of disputed facts.” Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017).
“As the party asserting jurisdiction, [the plaintiff] bears the burden of proof for a 12(b)(1) motion to dismiss.... To meet that burden, [the plaintiff] must prove by a preponderance of the evidence that the court has jurisdiction based on the complaint and evidence.” King v. U.S. Dep't of Veterans Affs., 728 F.3d 410, 413 (5th Cir. 2013) (cleaned up). “A motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012) (brackets, quotes, and citation omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides for dismissal of a complaint when a defendant shows that the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6) motion, a “court accepts all well-pleaded facts as true and must consider those facts in the light most favorable to the plaintiff.” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018). But the court does not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted).
“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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint states a “plausible claim for relief” when the factual allegations contained in it allow the court to infer actual misconduct by the defendant, not a “mere possibility of misconduct.” Id. at 679. The complaint “‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
C. Pro Se Pleadings and Briefs
Courts “must construe the pleadings of pro se litigants liberally.” Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). Courts should also “liberally construe” briefs filed by pro se litigants and “apply less stringent standards” to them. United States v. Reece, 938 F.3d 630, 633 n.2 (5th Cir. 2019) (quoting Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam)).
III. DISCUSSION
A. The Court's Subject-Matter Jurisdiction
1. Denial of Benefits
Defendant argues that Plaintiff's medical negligence claim is based on a denial of benefits by the VA, and the Veterans' Judicial Review Act (“VJRA”) precludes judicial review of veterans' benefits determinations. Mot. 8-9. Defendant also argues that the Fifth Circuit has rejected attempts by other plaintiffs to circumvent the VJRA by presenting their claims as torts or constitutional violations. Id. at 10. Additionally, Defendant asserts that Plaintiff has filed constitutional claims in the past that were dismissed under the VJRA as attempts to challenge veterans' benefits decisions. Id. at 11-12.
In his response, Plaintiff appears to argue that Leal was not his private medical provider, but rather that he was receiving medical treatment from the VA through Leal. Pl.'s Mot. Opp'n Def.'s Mot. Dismiss ¶¶ 51-53 [hereinafter Pl.'s Resp.], ECF No. 56. Plaintiff emphasizes that he had to visit a VA office regularly in order to maintain VA approval to see Leal for treatment, and his prescriptions were filled through the VA. Id. ¶ 53.
In its reply, Defendant argues that the characterization of Leal does not matter: “Regardless of how Leal is described-whether as an outside specialist, a non-VA provider, or so on- Plaintiff's claim is premised on allegations that the VA failed to pay Leal, and the claim is therefore barred by the VJRA.” Def.'s Reply Supp. Mot. Dismiss Second Am. Compl. 2, ECF No. 58. Defendant argues that, ultimately, Plaintiff is not alleging any medical negligence but rather that the VA “negligently failed to pay for treatment by an outside provider,” id. at 4, which is a “quintessential benefits determination[],” id. at 5 (quoting Smith v. United States, 7 F.4th 963, 986 (11th Cir. 2021)).
The VJRA provides that “[t]he Secretary [of the VA] shall decide 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 or the dependents or survivors of veterans.” 38 U.S.C. § 511(a). It adds that “the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.” Id. A “benefit” is defined as “any payment, service, commodity, function, or status, entitlement to which is determined under laws administered by the [VA] pertaining to veterans and their dependents and survivors.” 38 C.F.R. § 20.3(e).
The VJRA “clearly announced the intent of Congress to preclude review of benefits determinations in federal district courts.” Zuspann v. Brown, 60 F.3d 1156, 1158 (5th Cir. 1995). “The exclusive avenue for appeal of a VA benefits determination is through the Court of Veterans Appeals, and from there to the United States Court of Appeals for the Federal Circuit.” Thornton v. United States, 281 F.Supp.3d 116, 119 (D.D.C. 2017). Article III courts can review some claims against the VA, as long as “the suit does not require first determining whether the VA ‘acted properly' with respect to a benefits request.” Id. This determination hinges on the substance of a plaintiff's claim, not the label that he assigns to it. Id. at 119-20. A plaintiff cannot bring a claim under the FTCA that is barred by the VJRA. See King, 728 F.3d at 414-15 (upholding the district court's dismissal for lack of subject-matter jurisdiction when the plaintiff sued the VA for negligence regarding the temporary termination of his benefits).
Two cases are particularly instructive. The first is Tunac v. United States, 897 F.3d 1197 (9th Cir. 2018). There, the Ninth Circuit articulated the standard for when federal district courts have jurisdiction. The court explained that medical negligence claims over issues like a failure to inform about a diagnosis would not fall under § 511. Id. at 1203. These questions do not involve benefits determinations. Id. However, “claims that the VA failed to render the appropriate medical services because it denied the veteran's request for benefits would require the district court to determine first whether the VA acted properly in providing the veteran benefits” and thus would be foreclosed under § 511. Id. (cleaned up).
The other is Price v. United States, 228 F.3d 420 (D.C. Cir. 2000). There, the plaintiff filed suit alleging that the VA “wrongfully failed to reimburse him for certain medical expenses he incurred” when undergoing an operation for colon cancer. Id. at 421. The plaintiff argued that the VA was obligated to pay for his medical expenses due to his status as a veteran. Id. The D.C. Circuit determined that the district court did not have jurisdiction to hear the plaintiff's claim, because the plaintiff's claim that the VA wrongfully failed to pay his medical bills was “an allegation that the VA unjustifiably denied him a veterans' benefit.” Id. It concluded that to resolve the plaintiff's suit, the district court would have had to “determine first whether the VA acted properly in handling [the plaintiff's] request for reimbursement.” Id. at 422. Thus, judicial review was foreclosed under 38 U.S.C. § 511(a). Id.
In this case, Plaintiff has not alleged any negligence or malpractice by a health care employee in the course of his treatment. Ultimately, Plaintiff's complaint is that the VA did not pay Leal for Plaintiff's mental health treatment. Second Am. Compl. ¶ 15. As seen in Price, a plaintiff's complaint that the VA did not cover his medical bills is an allegation that the plaintiff was denied a benefit by the VA. Thus, Plaintiff is asking the Court to look into VA benefits determinations, which is foreclosed by 38 U.S.C. § 511. Therefore, the Court lacks subject-matter jurisdiction over this claim.
2. Escort by Armed Police Officers
Plaintiff alleges that whenever he had to go to the VA in order to obtain authorization to continue being seen by Leal, Plaintiff was accompanied by two armed federal police officers as an escort. Second Am. Compl. ¶ 14. Plaintiff asserts that VA medical professionals breached their duty of care by “failing to recognize that not treating the plaintiff['s] mental health condition and requiring the plaintiff to be esc[orted] by armed federal police officers could have caused the plaintiff to be shot and killed.” Id. ¶ 5. Defendant argues that the decision to have police officers escort Plaintiff when he was on VA property falls under the discretionary function exception to the FTCA. Mot. 12. Plaintiff, on the other hand, argues that the requirement that he be escorted by VA police officers “does not come under the discretionary function exception of the FTCA, because VA Police Officers are considered support personnel and owe the plaintiff a legal duty of care.” Pl.'s Resp. ¶ 54. Defendant rebuts that there is no carveout in the discretionary-function exception for actions of support personnel. Def.'s Reply Supp. Mot. Dismiss Second Am. Compl. 6.
The FTCA provides that the U.S. Government cannot be held liable for “[a]ny claim based upon an act or omission of an employee of the Government . . . in the execution of a statute or regulation, . . . or based upon the exercise or performance [of] . . . a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). This exception requires looking at whether the act in question contains “an element of judgment or choice” and whether “that judgment is of the kind that the discretionary function exception was designed to shield.” United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (citations omitted). If both of these requirements are met, then the action falls under the discretionary function exception, and the Court does not have subject-matter jurisdiction over the claim. See Spotts v. United States, 613 F.3d 559, 573 (5th Cir. 2010) (“[T]he discretionary function exception precludes subject matter jurisdiction over the plaintiffs' FTCA claims.”).
There is an element of judgment or choice in requiring a patient to have a police escort on VA property. The decision to put restrictions on a patient's care is made by considering “all pertinent facts.” 38 C.F.R. § 17.107(c). Restrictions on care “may include but are not limited to” a few different options, including requiring a police escort. Id. § 17.107(d) (emphasis added). Thus, it seems clear that the VA has to make judgments both regarding whether a patient's behavior justifies imposing restrictions on his treatment and what those restrictions should be.
Restrictions on patient care are also the types of decisions that the discretionary function exception was designed to protect. The exception is meant to “protect[] only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323 (citation omitted). “The time, place, and/or manner of the provision of a patient's medical care may be restricted” if certain requirements are met, including that the patient's behavior “has jeopardized or could jeopardize the health or safety of other patients, VA staff, or guests at the facility, or otherwise interfere with the delivery of safe medical care to another patient at the facility.” 38 C.F.R. § 17.107(b). Therefore, the VA makes decisions about restrictions on patient care based on concerns about safety and the ability to continue to provide medical care to other patients. These are decisions of public policy that are protected by the discretionary function exception.
B. Failure to State a Claim Upon Which Relief Can Be Granted
Defendant also argues that Plaintiff has failed to state a claim upon which relief may be granted. Mot. 16-18. Under the FTCA, liability is “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The actions for which Plaintiff alleges Defendant is liable in this case took place in El Paso, Texas, so Texas law governs. See Second Am. Compl. ¶¶ 2, 13, 22. The elements of a medical negligence claim under Texas law are: “(1) a duty to conform to a certain standard of care; (2) a failure to conform to the required standard; (3) actual injury; and (4) a causal connection between the conduct and the injury.” Petersen v. Johnson, 57 F.4th 225, 236 (5th Cir. 2023) (quoting Methodist Hosp. v. German, 369 S.W.3d 333, 338 (Tex. App. 2011)).
1. Denial of Benefits
Defendant alleges that Plaintiff has not pleaded enough facts to show that the VA had “a duty to pay for the private treatment [Plaintiff] demands,” the VA failed to conform to a required standard of care, and the VA's conduct caused his alleged injury. Mot. 17. Defendant argues that Plaintiff has made only conclusory allegations, which are insufficient to defeat a motion to dismiss. Id. at 17-18. In his response, Plaintiff does not appear to address Defendant's 12(b)(6) motion.
The complaints of pro se plaintiffs are “held to a less stringent standard.” Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, “pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.” Id. (citation omitted).
Plaintiff seems to allege that the VA failed to treat his mental health condition, which is the cause of his injuries. Second Am. Compl. ¶¶ 5, 15-16, 21-23. However, despite saying that “the [VA's] medical professional[s] and their supporting personnel owed the plaintiff a legal duty of standard medical care,” id. ¶ 20, Plaintiff has not established that the VA had such a duty towards him. The VA was not providing Plaintiff medical treatment in these circumstances.Plaintiff was seeing Leal, an outside medical provider, for his medical treatment and stated himself in his Second Amended Complaint that he opted out of receiving medical treatment from the VA. Id. ¶ 16 n.1. In his response to Defendant's motion, Plaintiff appears to argue that Leal was acting on behalf of the VA, see Pl.'s Resp. ¶¶ 51-53, but this argument does not appear in his complaint.
Plaintiff does state that he was getting his medication filled at the VA. Second Am. Compl. ¶ 15. However, Plaintiff does not allege any malpractice by the VA with respect to its actions in filling his medication.
Since Plaintiff has failed to provide sufficient factual allegations to support his claim, the Court believes that it should be dismissed.
2. Escort by Armed Police Officers
Lastly, Defendant alleges that Plaintiff has failed to state a medical negligence claim with respect to the requirement that he be escorted by police when visiting the VA. Mot. 18. The Court agrees that the requirement that Plaintiff be escorted by armed police officers while on VA property would not qualify as Plaintiff being given medical care by the VA. Cf. Goldsmith v. United States, No. 22-CV-36-EFM, 2022 WL 17853196, at *1-3 (E.D. Okla. Dec. 22, 2022) (stating that the VA's action in labelling a patient as “at risk for disruptive or dangerous behavior” did not count as furnishing health care or treatment).
C. Leave to Amend
Defendant argues that Plaintiff should be denied an opportunity to amend his complaint because a motion to amend would be futile. Mot. 18-19. Defendant argues that Plaintiff has already pleaded his best case, and “none of the allegations in the Second Amended Complaint, construed in the light most favorable to Plaintiff, suggest a viable claim.” Id. at 19.
Granting leave to amend would be futile in a case where the district court lacks subjectmatter jurisdiction. See, e.g., Isom v. U.S. Dep't of Homeland Sec., No. 420CV00948SDJCAN, 2021 WL 2232052, at *3 (E.D. Tex. Apr. 28, 2021) (recommending that a pro se plaintiff's complaint be dismissed without leave to amend because the court lacked subject-matter jurisdiction over the plaintiff's claims), report and recommendation adopted sub nom. Tyesha N. Isom v. Dep't of Homeland Sec. et al., No. 4:20-CV-948-SDJ, 2021 WL 2224345 (E.D. Tex. June 2, 2021); Mintex, Inc. v. Pro. Acct. Mgmt., LLC, No. 3:23-CV-0301-B, 2023 WL 7283924, at *2 (N.D. Tex. Nov. 2, 2023) (denying the plaintiff leave to file its second amended complaint on the grounds of futility because the court lacked subject-matter jurisdiction). Therefore, the Court recommends not granting Plaintiff an opportunity to amend his Second Amended Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Defendant United States of America's Motion to Dismiss Second Amended Complaint (ECF No. 52) be GRANTED.
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.