Bush v. Sec'y of the Dep't of Veterans Affairs

WILLIE JAMES BUSH, JR., Plaintiff, v. SECRETARY OF THE DEPT. OF VETERANS AFFAIRS, et al., Defendants.

Case No. 1:13-cv-76

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Date: January 13, 2014

Weber, J.

Litkovitz, M.J.

ORDER AND REPORT

AND RECOMMENDATION

I. Background and Initial Matters

Plaintiff Willie James Bush, Jr., proceeding pro se, brings this action against the United States of America (defendant) seeking damages in excess of $1 million.¹ (Doc. 5). Plaintiff is seeking damages in the range of $1 million to $277.6 trillion for defendant's purported failure to adequately examine and diagnose plaintiff's injuries and hearing loss. (Id.). This matter is before the Court on defendant United States of America's motion to dismiss (Doc. 9), plaintiff's response in opposition (Doc. 11), and defendant's reply. (Doc. 12). Plaintiff filed a sur-reply on May 23, 2013 (Doc. 13), but failed to seek leave of Court to file the document. See S.D. Ohio Civ. R. 7.2(a)(2) (prohibiting filing sur-replies without leave of Court for good cause shown). Plaintiff's sur-reply has therefore not been considered in the Court's analysis of defendant's motion to dismiss.² Accordingly, defendant's motion to strike plaintiff's sur-reply (Doc. 14) is DENIED as moot.

Plaintiff subsequently filed a motion seeking leave to file a sur-reply on the basis that "defendant refuse to cooperate for information that I previous ask for!" (Doc. 15). The undersigned finds that plaintiff has failed to make the necessary showing of good cause for filing a sur-reply. While the Local Rules do not define "good cause" for filing a sur-reply, "this Court has consistently held that in order for a party to be given permission to file a sur-reply, the reply brief must raise new grounds that were not presented as part of the movant's initial motion." Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., No. 2:07-cv-l 190, 2010 WL 4117552, at *4 (S.D. Ohio Oct. 19, 2010) (citing cases). Defendant does not raise new grounds in its reply memorandum such that good cause exists for granting plaintiff leave to file a sur-reply; thus, plaintiff's motion to file a sur-reply to defendant's motion to dismiss (Doc. 15) is DENIED. Consequently, defendant's motion to strike plaintiff's motion to file a sur-reply (Doc. 16) is DENIED as moot.

II. Plaintiff's complaint

Plaintiff's complaint and attachments thereto are somewhat difficult to decipher. Plaintiff appears to allege he was denied a 100% disability rating by the Veterans Administration based on his hearing loss and foot injury, and that the negligence of employees in the United States Air Force and at the Veterans Affairs Medical Center (VAMC) in Cincinnati, Ohio contributed to the denial of an upgraded disability rating:

FILING LAWSUIT AGAINST UNITED STATES, BECAUSE US AIR FORCE AND CINCINNATI VAMC DIDN'T DO A THOROUGH JOB IN CHECKING OUT INJURIES FROM MOTORCYCLE ACCIDENT (RT FOOT), PLUS HEARING LOST DUE TO WORK ON FLIGHTLINE AND US POST OFFICE AS MECHANIC! REGIONAL OFFICE SITTING ON CLAIM AND NOT PROCESSING FOR COMPENSATION AND PENSION AND UPDATE FOR 100% DISABILITY!

(Doc. 5, ECF PAGEID 52). Plaintiff alleges:

THE LAWSUIT DATED 01-12-2013, FIGURES WERE THE SUM OF 64 MILLION DOLLARS AND ON 02-01-2013, WILL BE THE SUM OF 277.6 TRILLION DOLLARS, THAT ON 01-10-2013, WAS A MERE ONE MILLION DOLLARS AND MR. BEDELL REFUSE TO PAID, BECAUSE OF ONGOING INVESTIGATION, THAT WAS ALREADY DONE BY MYSELF! . . . THIS CLAIM IS THIRTY THREE YEARS OLD! . . . . I WANT TO TAKE NOTE OF THE THIRD PARAGRAPH IN THIS LETTER DATING 01-14-2013, FROM DEPT OF VA, OFFICE OF REGIONAL COUNSEL, ONE VETERANS DRIVE, BLDG. 7, MINNEAPOLIS, MN 55417, YOUR REVIEW IS UNACCEPTABLE, DUE TO THE FACT, YOU WASN'T THERE! HAVING SAID THAT, ALL ARE ALLEGATIONS AND MUST BE PROVEN, WITHOUT ANY DOUBT AND YOU CAN'T DO THAT! THIS LETTER IS UNACCEPTABLE AND THE LAWSUIT STANDS! IN THE FUTURE, TO ALL VA ATTORNEYS, IF YOU WERE NOT PRESENT WHEN INCIDENTS WHEN DOWN, RECORDED, TAPED, OR VIDEO, YOUR STATEMENTS ARE ASSUMPTIONS, MEANING "MAKING AN ASS OUT OF YOU AND ME" AND I'M NOT HAVING IT! SOME MEDICAL RECORDS LIED, ESPECIALLY IN THE DEPT OF VA! THIS IS 2013, I PLAN ON SUEING THE UNITED STATES IN FEDERAL COURT, EVERY MONTH FROM NOW ON OF 2013! I ADVISE ALL, COME WITH YOUR "A" GAME, BECAUSE I'M HARDER THAN YOU THINK! TO ASSUME ALL MEDICAL PROFESSIONALS ARE WITHOUT ISSUES OR MISTAKES OR ACCIDENTS IS THE SIGN OF A FOOL, AND I CAN'T WAIT UNTIL YOU CRASH AND HIT ROCK BOTTOM TO SEE THIS! THIS IS WHY WE HAVE MALPRACTICE LAWSUITS!

(Doc. 5, ECF PAGEID 53).

III. Motion to Dismiss

Defendant moves for dismissal of the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that this Court lacks subject matter jurisdiction and, further, that plaintiff has failed to state a claim upon which relief may be granted. Defendant asserts that plaintiff's claim involves incidents arising out of his military service and is precluded by Feres v. U.S., 340 U.S. 135 (1950), where the Supreme Court enunciated the intra-military immunity doctrine and held that the Federal Tort Claims Act (FTCA) did not extend its remedy to claims arising out of military service. (Doc. 9 at 4-6). Defendant contends that, in light of Feres, thisCourt lacks subject matter jurisdiction and that plaintiff's claims must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). (Id.). Defendant further contends that plaintiff's lawsuit must be dismissed because this Court lacks jurisdiction over veterans' benefits claims which are governed by the Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687, Div. A, § 101, 102 Stat. 4105 (1988). (Id. at 6-8). Defendant maintains that the Secretary of Veterans Affairs is charged with determining all matters regarding veterans' benefits; there exists an internal administrative appeals process governing claims such as plaintiff's; and Congress expressly intended to exclude such claims from judicial review in implementing the VJRA. (Id. at 6-7) (citing 38 U.S.C. §§ 20.101(a), 511(a), 7104(a), 7252(a), 7292)). Defendant further contends that plaintiff's failure to comply with Rule 10(D)(2) of the Ohio Rules of Civil Procedure, which provides that complaints containing medical claims must be accompanied by an affidavit of merit, requires dismissal of plaintiff s lawsuit. (Doc. 9).

In his response in opposition, plaintiff does not address defendant's arguments and states only that the FTCA permits suits against the United States and its agencies. (Doc. 11 at 1). Plaintiff argues that defendant's motion to dismiss should be denied because he stated a claim by mentioning "227.6 trillion dollars and 150 million dollars for relief over the 33 years and the 100% disability upgrade. . . ." (Id.). Plaintiff states that "the audiology doctor at the Cincinnati VAMC has not upgrade[d] my hearing impairment to a 100% disability" and because plaintiff believes he is raising federal claims only, he does not understand defendant's reference to Ohio state procedural law. (Id. at 1-2). Plaintiff further argues that defendant owes him money in unpaid travel pay and argues that defendant is liable for causing him post-traumatic stress disorder. (Id. at 2).

IV. Standard for Ruling on Motion to Dismiss

Rule 12(b)(1) allows dismissal of complaints where the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss pursuant to Rule 12, the Court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, (1974). See also Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Plaintiff bears the burden of proving jurisdiction in order to survive a motion to dismiss on grounds of lack of subject matter jurisdiction. Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003); Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Assn., Inc., 287 F.3d 568, 573 (6th Cir. 2002); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). "In reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits." Nichols, 318 F.3d at 677, citing Rogers v. Stratton Industries, 798 F.2d 913, 916 (6th Cir. 1986).

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, plaintiff's 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 Twombly, 550 U.S. at 570). "A claim has facial plausibility 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. (citing Twombly, 550 U.S. at 556). While the Court mustaccept all well-pleaded factual allegations as true, it need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Attain, 478 U.S. 265, 286 (1986)). The complaint need not contain "detailed factual allegations," yet must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557.

Although plainti...