Opinion
3:21-CV-00350-YY
03-15-2021
MICHAEL RAY SWANSON, Plaintiff, v. UNITED STATES, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Pro se plaintiff Michael Swanson has filed a Complaint (ECF #1) and an Application to Proceed In Forma Pauperis (“IFP”) (ECF #2). The court granted plaintiffs IFP application by separate order on this same date.
The in forma pauperis statute provides that “[notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “A pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” Fed. R. Civ. P . 8(a). “Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id.
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). “Although a pro se litigant . . . may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Plaintiff asserts claims against the United States premised on his alleged exposure to contaminated water while stationed at Camp Lejeune, which he contends caused him illness, including cerebellar ataxia. See Compl. § III, ECF #1. He alleges “Irreparable Injury” because there is “[n]o cure for cerebellar ataxia.” Id. § IV. He contends that “[c]ompensation can[not] be measured, who knows what is in store for me.” Id. He seeks relief in the form of “[p]unitive damages for emotional stress/torture, ” “[l]ost earnings and earning potential since end of 2006, ” and injunctive relief. Id. § II.B.3, V, 12.
Even liberally construed, plaintiff's complaint fails to state a claim for relief. In response to the question, “Where did the events giving rise to your claim(s) occur?, ” plaintiff states:
1. UNITED STATES, the federal register vol/82, No. 9, Friday 13, January 2017, (Parkinson's Disease, not ataxia)
2. UNITED STATES, Aug. 6, 2012 public law 112-154, short title is (Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012), No. Parkinson's disease, but Neurobehavioral effects and NO Ataxia.
3. 1992/2001/2007, ATSDR course SS3056 (TCE Toxicity, page/10, NO parkinson's, neurobehavioral effects, it has; ataxia and cerebellar damage) Parkinsonism
4. 1992/2000/2006/ATSDR, course SSS3046 Exposure history, p/7, ONLY ataxia and Parkinsonism.
5. To add 20th and 21st century, health effects of TCE-trichloroethylene lists ataxia.
6. Heath effects of Vinyl Chloride, ataxia, cerebellar degeneration.
7. 2014 exposure and Vietnam, exhibit (s), United States stated there was NO RATIONAL basis for an exclusion of those with parkinson like symptoms from service related category of Parkinson's diseaseId. § III.A., B.
This list describes the some of the attachments plaintiff submitted with his complaint. See Compl. 7-30, ECF #1.
Plaintiff alleges the facts underlying his claim as follows:
What happened is the UNITED STATES ON THE HEALT EFFECTS OF EXPOSURE, altered the science from ataxia, parkinsonism and Cerebellar degeneration (20/21 century) into ONLY neurobehavioral effects in the 2012 Honoring America's Veterans Act. Then the UNITED STATES removed and replaced health effects from the previous items into ONLY parkinson's disease. The fact is stated in the Federal Register page/4179 that Parkinsons is medically distinguishable from parkinsonism, and it shows a DIFFERENT BRAIN INJURY, THAN (everything else) PLUS at this time the available evidence does not establish that parkinsonism and other manifestations of small fiber nerve damage are associated with exposure to the contaminates in the water supply at Camp Lejeune . . . United States chemicals of concern are (4) tce, pce, vinyl chloride and benzene, BUT 90 toxins at CampLejeune (50 plus) chemicals are in the ground water. Injuries from exposure do not get PURPLE HEART.Id. § III.C.
Plaintiff has filed three previous lawsuits with similar allegations. Compare generally Compl., ECF #1, with Swanson v. United States, 3:18-cv-02148-JR, Compl., ECF #2, ; Swanson v. United States Attorney General, 3:17-cv-01164-MO, Am. Compl., ECF #9; Swanson v. Attorney General, 17-cv-00216-MO, Am. Compl., ECF #6. All three cases were dismissed.
Plaintiff filed the first lawsuit on February 1, 2017, alleging a Federal Tort Claims Act (“FTCA”) claim and other claims against the United States Attorney General and other defendants because, inter alia, “[defendants] chose to ignore studies on health effects to the body from exposure from toxic drink[ing] water[.]” Swanson, 3:17-cv-00216, Am. Compl. §§ I.B., II.A., ECF #6. Judge Mosman granted defendants' motion to dismiss, finding that plaintiff had failed to exhaust his administrative tort claim with the Veterans Administration and that the court lacked subject matter jurisdiction under the Veterans' Judicial Review Act. Id., Opinion and Order, ECF #13.
Plaintiff filed the second lawsuit on July 17, 2017, alleging FTCA claims and other claims against the United States Attorney General premised on injuries caused by his exposure to contaminated water while stationed at Camp Lejeune. Swanson, 3:17-cv-01164-MO, Am. Compl. 4, ECF #9. In a hearing held on November 28, 2018, Judge Mosman granted the United States' motion for summary judgment, finding that plaintiffs claims were precluded by the Feres doctrine and the FTCA's statute of limitations. Id., Transcript 6:19-7:6, ECF #63. Judge Mosman entered judgment dismissing plaintiffs claims with prejudice on November 29, 2018. Id., Judgment, ECF #57.
The FTCA waives the United States' sovereign immunity, making it “liable for the tortious acts of its employees in the same manner and to the same extent as a private individual under like circumstances.” Daniel v. United States, 889 F.3d 978, 981 (9th Cir. 2018). However, under the Feres doctrine, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950).
Plaintiff filed the third lawsuit on December 14, 2018, alleging FTCA claims and other claims against the United States Attorney General and other defendants premised on injuries caused by his exposure to contaminated water while stationed at Camp Lejeune. Swanson, 3:18- cv-02148-JR, Compl., ECF #2. The court granted the United States' motion for summary judgment and dismissed the case with prejudice, finding that plaintiffs claims were barred by the doctrine of claim preclusion, and again finding they were precluded by the Feres doctrine and the FTCA's statute of limitations. Id., Findings and Recommendations, ECF #36, adopted by Opinion and Order, ECF #46.
In this case, plaintiff does not include the FTCA as a basis for his claims. See Compl § II, ECF #1. Instead, he states the basis for his claims as:
2 CFR 910.132 Research Misconduct[, ] 28 USC SS/1331, 33 USC /931--- 4(C)---False statements or representation to reduce, deny, or terminate benefits and 18 U.S. Code Chapter 47 - FRAUD AND FALSE STATEMENTS[]Id.
The regulation that plaintiff cites, 2 C.F.R. § 910.132, pertains to research conducted on behalf of the Department of Energy (“DOE”), and provides no basis for a claim related to alleged exposure to toxic chemicals at Camp Lejeune. See 2 C.F.R. § 910.132(a) (“A recipient is responsible for maintaining the integrity of research of any kind under an award from DOE including the prevention, detection, and remediation of research misconduct, and the conduct of inquiries, investigations, and adjudication of allegations of research misconduct in accordance with the requirements of this section.”).
Nor does 33 U.S.C. § 931(c) provide a basis for plaintiff s claims. Compl § II, ECF #1. This statute is part of the “Longshore and Harbor Workers' Compensation Act.” See 33 U.S.C. § 931(c) (“A person . . . who knowingly and willfully makes a false statement or representation for the purpose of reducing, denying, or terminating benefits to an injured [Longshore or Harbor] employee[.]”).
Plaintiff further cites to 18 U.S.C. § 47 as a basis for his claims. Compl § II, ECF #1. This statute, titled “Fraud and False Statements, ” encompasses a number of federal statutes that make it a crime to make or submit false or fraudulent statements to the United States. 18 U.S.C. §§ 1001-40. Plaintiff, as a private party, cannot bring a civil claim based on a violations of a federal criminal statute. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (explaining that criminal provisions under Title 18 of the U.S. Code “provide no basis for civil liability”) (citations omitted); see also Vrooman v. Armstrong, No. 3:16-CV-01109-YY, 2016 WL 6139953, at *2 (D. Or. Sept. 30, 2016), report and recommendation adopted, 2016 WL 6139924 (D. Or. Oct. 20, 2016) (“This court cannot resolve a criminal dispute brought by a private citizen. Criminal statutes are public in nature, prosecuted in the name of the United States.”).
Ordinarily, pro se litigants are entitled to notice of the deficiencies in the complaint and given the opportunity to amend. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.). However, this is plaintiff's fourth attempt to bring claims based on his alleged exposure to toxins during his military service at Camp Lejeune, and the last two cases were dismissed with prejudice. Plaintiff again fails to cite a valid claim for relief. Because providing plaintiff with further leave to amend would be futile, dismissal with prejudice is warranted. See Clark v. Duncan, 131 F.3d 145 (9th Cir. 1997) (“Where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate.).
RECOMMENDATIONS
Plaintiff's case should be dismissed with prejudice and judgment should be entered to that effect.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, April 05, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.