Jelks v. McDonald et al

Filing 17

MEMORANDUM OPINION - For the foregoing reasons, the Court lacks subject-matter jurisdiction over Jelkss claims to the extent they relate to his veterans benefits and state law tort claims. Additionally, Jelks has failed to state a claim under Bivens for constitutional violations by Defendants. Therefore, Defendants motion to dismiss, (doc. 8), is due to be GRANTED insofar as it seeks dismissal of Jelkss claims. Jelkss motion for a hearing is DENIED. Signed by Magistrate Judge John H England, III on 9/13/2017. (KEK)

FILED
2017 Sep-13 AM 11:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DANNY O’NEAL JELKS,
Plaintiff,
v.
ROBERT MCDONALD, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No.: 2:16-cv-01639-JHE

MEMORANDUM OPINION1
On October 5, 2016, Plaintiff Danny O’Neal Jelks (“Jelks” or “Plaintiff”) initiated this
action, alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 by Defendants Robert
McDonald (then Secretary of Veterans Affairs) and Phyllis Curtis, Michal Kilcoyne, Dexter
Carbonell, Allyn Mamalakis, Melissa Kindley, Edna McDonald, Cory Hawthorne, and Michael
Duesenberg, all of whom are employees of the Department of Veterans Affairs (“VA”). (Doc. 1).
Defendants responded with a motion to dismiss or, in the alternative, for summary judgment,
alleging this Court lacks subject matter jurisdiction to consider Jelks’ claims and, alternatively,
they are entitled to judgment as a matter of law. (Doc. 8). Jelks filed a response in opposition,
(doc. 11), and Defendants filed a reply brief, (doc. 14). After Defendants’ reply, Jelks filed a
document entitled “Plaintiffs Objection to the Defendant’s Motion to Dismiss, or in the
Alternative, for Summary Judgment,” (doc. 15), which the Court construes as a sur-reply. Jelks

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 12).

has also moved for a hearing on Defendants’ motion. (Doc. 16). For the reasons stated more fully
below, the motion for a hearing is DENIED and the motion to dismiss is GRANTED.2
Standard of Review
Federal courts are courts of limited jurisdiction, with the power to hear only cases
authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Under Federal Rule of Civil Procedure 12(b)(1), a party may move the court to
dismiss a case if the court lacks jurisdiction over the subject matter of the case. Even when a party
does not assert a jurisdictional challenge, “a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.” Bochese v. Town of Ponce Inlet, 405 F.3d
964, 975 (11th Cir.2005). Simply put, a federal court is powerless to act beyond its constitutional
or statutory grant of subject-matter jurisdiction. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th
Cir.2001). Regardless of how the issue came before the court, a plaintiff, as the party invoking
jurisdiction, bears the burden of establishing the court's subject-matter jurisdiction. Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir.1994).
A challenge to a court's subject-matter jurisdiction may come by way of a facial attack or
a factual attack:
Facial attacks on the complaint require the court merely to look and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true for the purposes of the motion.
Factual attacks, on the other hand, challenge the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered.

Because the motion is granted as to dismissal of Jelks’s claims, the undersigned does not
address Defendants’ motion to the extent it seeks summary judgment.
2
2

Garcia v. Copenhaver, Bell & Assocs., M.D.s, 104 F.3d 1256, 1261 (11th Cir.1997) (citations
omitted). Because Defendants rely on documents which are outside of the pleadings, (see doc. 8
at 14-19), their challenge to the court's subject-matter jurisdiction is, at least in part, a factual
attack. Under such an attack, “no presumptive truthfulness attaches to plaintiff's allegations, and
the existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)
(per curiam) (citation omitted). Indeed, “[i]n the face of a factual challenge to subject matter
jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United
States, 285 F.3d 947, 951 (11th Cir.2002); Motta v. United States, 717 F.3d 840, 844 (11th
Cir.2013).
However, a court may only find that it lacks subject-matter jurisdiction “if the facts
necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.” Morrison
v. Amway Corp., 323 F.3d 920, 925 (11th Cir.2003) (citations omitted). When a jurisdictional
challenge implicates the merits of the plaintiff's claim, the court must “find that jurisdiction exists
and deal with the objection as a direct attack on the merits of the plaintiff's case.” Id. (citations
omitted). This ensures “a greater level of protection for the plaintiff who in truth is facing a
challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . .
or Rule 56 . . . both of which place great restrictions on the district court's discretion.” Id. (citations
omitted) (alterations in original). “To survive a motion to dismiss [under Rule 12(b)(6)], 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) (citations and internal quotation
marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads

3

factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citation omitted).
Background3
Jelks is a veteran of the United States armed forces. At some point, Jelks qualified for the
Veterans Retraining Assistance Program (“VRAP”) and intended to attend Lawson State
Community College in Birmingham, Alabama. (Doc. 1 at 5). However, Jelks experienced
problems with Lawson State’s admissions process and chose instead to attend Birmingham
Easonian Baptist Bible College (“BEBBC”), also in Birmingham. (Id.). Jelks was accepted to
BEBBC on January 23, 2013. (Id.). Jelks was enrolled on the understanding he would resubmit
his VRAP paperwork, but VA Education Officer Phyllis Curtis denied his request to use his
benefits at BEBBC. (Id.). Jelks appealed to the Board of Veterans Appeals, but Board of Veterans
Appeals Judge Michael E. Kilcoyne upheld the denial of benefits. (Id.). Jelks alleges other
veterans were permitted to attend BEBBC using their VRAP benefits over the last twenty-three
years and that denying him the ability to do so is discrimination. (Id.).
Additionally, Jelks claims the VA Regional Office in Nashville, Tennessee, has retaliated
against him by denying every disability claim he has filed with it since he filed a wrongful
termination suit against the VA in 2007. (Id.). Jelks alleges these claims—for earlier pay dates
for service-connected injuries, depression, PTSC, “poly substance abuse,” and penis surgery—
have all been denied without a hearing or considering the evidence, in violation of VA rules,
regulations, and policies. (Id. at 5-6). Jelks claims his medical records were altered by a clerk at

The factual allegations in this section are taken from Jelks’s complaint. The undersigned
indicates below the extent to which their truth is assumed in this opinion.
4
3

a VA clinic in Murfreesboro, Tennessee, which affected his disability compensation, and that some
of his military records have been destroyed or hidden by the Nashville, Tennessee, and
Montgomery, Alabama VA offices. (Id. at 6). Jelks alleges he has been denied compensation for
neck surgery and spinal cord injuries and that the VA refuses to surgically repair his lumbar region.
(Id.). Finally, he states that the VA has refused to provide him his clothing allowance since 2012,
forcing him to have to appeal these denials.4 (Id.). Jelks, as a general matter, alleges the issues
with his benefits are “how the VA system has treated [him] and so many other Black Veterans”
and that his lawsuit is brought “to ensure that every American Soldier, regardless of his skin color,
is treated EQUALLY[.]” (Id. at 8).
Analysis
Defendants argue this Court has no subject-matter jurisdiction in part because Jelks has
failed to exhaust his administrative remedies under the FTCA and under Title VII. (Doc. 8 at 58). Defendants also contend the Veterans Judicial Review Act (“VJRA”) bars Jelks’s claims for
VA benefits and that his civil rights claims against them under 42 U.S.C. § 1983 are barred by
sovereign immunity. (Id. at 8-10). Additionally, although they do not develop these arguments
beyond assertion, Defendants argue the complaint should be dismissed for insufficient process and
insufficient service of process under Rule 12(b)(4) and (5), for improper venue under Rule
12(b)(3), and for lack of personal jurisdiction under Rule 12(b)(2). (Id. at 10-11). In his response,
Jelks contests the issue of improper service and explains his retaliation claim; he does not address
any of the issues Defendants raise as to subject-matter jurisdiction. (See doc. 11 at 2). Jelks’s sur-

4

Jelks also includes in the conclusion to his complaint an account of alleged misconduct
by his former VA attorney, (see doc. 1 at 7-8), but the attorney is not a party to this action and
Jelks does not appear to allege a cause of action based on this misconduct.
5

reply again does not offer a counterargument, but instead discusses justice as a general matter and
requests a hearing. (See doc 15).
A. Judicial Review of Veterans’ Benefits Denial
Ostensibly, Jelks brings claims for racial discrimination in denial of benefits and seeks
money damages for that discrimination. Defendants contend Jelks’s claims, insofar as they
challenge denial of benefits, are barred by the VJRA, which provides that
(a) The Secretary 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. Subject to subsection (b),
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.
(b) The second sentence of subsection (a) does not apply to-(1) matters subject to section 502 of this title;
(2) matters covered by sections 1975 and 1984 of this title;
(3) matters arising under chapter 37 of this title; and
(4) matters covered by chapter 72 of this title.
38 U.S.C. § 511. The VJRA provides for an appeals process for denied benefits, culminating, if
necessary, in review by the United States Supreme Court. Hall v. U.S. Dep't of Veterans Affairs, 85
F.3d 532, 534 (11th Cir. 1996). Congress has chosen to bypass the district courts entirely in this
review process: “judicial review of a particular application of the law made by the Secretary with
respect to a veteran's entitlement to benefits may be had only by appealing to the Board [of
Veterans Appeals], then to the Court of Veterans Appeals, the Federal Circuit Court of Appeals
and the Supreme Court.” Id. (emphasis added); see also Karmatzis v. Hamilton, 553 F. App’x.
617, 618–19 (7th Cir.2014) (“The circuits unanimously agree that the VJRA divests the federal
courts of jurisdiction to review lawsuits challenging individual veteran's benefits decisions.”)
(collecting cases).
6

Although Jelks does not directly seek an award of benefits, (see doc. 1 at 9 (seeking
compensatory damages for “emotional distress, pain and suffering” and punitive damages)), and
alleges his cause of action is for violation of his civil rights, he cannot evade the conclusion that
he essentially seeks review of the determination by the Secretary of Veterans affairs that he was
not entitled to benefits. Regardless of how Jelks frames his claims, a district court simply lacks
subject-matter jurisdiction to consider a claim challenging a denial of individual benefits.5 See,
e.g., Walton v. Sec'y Veterans Admin., 187 F. Supp. 3d 1317, 1326 (N.D. Ala. 2016) (finding no
jurisdiction under VJRA over claims that racial discrimination led to a denial of benefits); Cheves
v. Dep't of Veterans Affairs, 227 F. Supp. 2d 1237, 1246 (M.D. Fla. 2002) (same); Pate v. Dep't of
Veterans Affairs, 881 F. Supp. 553, 556 (M.D. Ala. 1995) (due-process-based individual benefits
claims barred under VJRA).

Thus, Jelks’s claims are due to be dismissed for lack of subject-

matter jurisdiction to the extent they challenge the denial of his veterans’ benefits.
B. Constitutional Claims
Notwithstanding the absence of subject-matter jurisdiction, the undersigned will also
consider Jelks’s claims to the extent they are arguably constitutional claims independent of the
denial of benefits. Jelks purports to bring civil rights claims pursuant to 42 U.S.C. § 1983 against
Defendants, all of whom are federal employees. (Doc. 1 at 1). Defendants assume these claims

5

Conceivably, a district court might entertain a facial constitutional challenge to a VA
regulation or to a statute governing benefits. See Pate, v. Dep't of Veterans Affairs, 881 F. Supp.
553, 555 (M.D. Ala. 1995) (noting “[i]t is not fully clear” that the VJRA has foreclosed such
challenges). However, even liberally construing Jelks’s complaint, he does not bring such a
challenge.
7

were brought against them in their official capacities and argue these claims are due to be dismissed
on the basis of sovereign immunity. (Doc. 8 at 9-10).
Defendants are correct when they argue a suit against a federal employee in his official
capacity is a suit against the United States, which has not waived its sovereign immunity under
§ 1983 and which, in any event, is not a “person” within the meaning of § 1983. See United States
v. Timmons, 672 F. 2d 1373, 1380 (11th Cir. 1982) (holding, in the context of §§ 1981 and 1982
claims, that the United States “has not waived its immunity to suit under the provisions of the civil
rights statutes.”); Hoffman v. HUD, 519 F.2d 1160, 1165 (5th Cir. 1975) (“[A] federal agency is
. . . excluded from the scope of section 1983 liability.”).6 However this argument prizes the form
of Jelks’s complaint (Jelks’s contention his suit is brought pursuant to § 1983) over its substance
(the civil rights claims Jelks asserts); pro se pleadings are liberally construed, see Haines v. Kerner,
404 U.S. 519, 520-521 (1972), and the undersigned declines to penalize Jelks for mistakenly
identifying § 1983 as the basis for relief for constitutional claims against federal officials. Thus,
the undersigned construes Jelk’s civil rights claims against Defendants as claims pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which is
the civil rights remedy against federal officials and is analogous to § 1983. See Robinson v. United
States, 484 F. App’x. 421, 422 n.1 (11th Cir. 2012) (construing pro se § 1983 complaint as a Bivens
action); Hughley v. Lee Cty., Ala., No. 3:15CV126-MHT, 2015 WL 2168964, at *1 (M.D. Ala.
May 8, 2015) (same).

6

The decisions of the former Fifth Circuit handed down before October 1, 1981, are
binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
8

It is not clear whether Jelks intends to assert claims against Defendants in their individual
or official capacities. Ordinarily, when there is a question about the nature of liability, the course
of proceedings will typically indicate the liability sought to be imposed. Lundgren v. McDaniel,
814 F.2d 600, 604 (11th Cir. 1987) (quoting Kentucky v. Graham, 473 U.S. 159 (1985)). Here, to
the extent that he refers to Defendants specifically, Jelks consistently refers to them by their official
titles, (see doc. 1 at 1 & 9), and he did not dispute Defendants’ characterization of his claims as
brought against them in their official capacities in either his response or his sur-reply. However,
a Bivens action may only be maintained against a federal official in his individual capacity, and
does not allow a cause of action against a federal officer in his official capacity or against a federal
agency. Nalls v. Coleman Low Fed. Inst., 307 F. App'x 296, 297 (11th Cir. 2009) (citing Corr.
Servs. Corp. v. Malesko, 534 U.S. 61 (2001) and F.D.I.C. v. Meyer, 510 U.S. 471 (1994)).
Continuing to liberally construe Jelks’s complaint, the undersigned assumes he intends to sue each
Defendant in his or her individual capacity. See Nalls, 307 F. App’x at 298 (“If the district court
had liberally construed [the plaintiff’s] complaint, it would have found his claims to be against the
individual defendants in their individual capacities to conform to his Bivens claim.”). And,
following the guidance of the Eleventh Circuit, the undersigned considers Jelks’s Bivens claims
under Rule 12(b)(6) rather than 12(b)(1). Lee v. Hughes, 145 F.3d 1272, 1277 n.2 (11th Cir. 1998).
Thus, for the purposes of this section, the undersigned takes Jelks’s allegations as true, resolves all
inferences in his favor, and considers only the pleadings. Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th
Cir. 1993)).
The Supreme Court has allowed an implied cause of action under Bivens for constitutional
violations in very limited circumstances. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017).
9

Specifically, the Court has recognized such a claim in three situations: in the original Bivens case,
for persons injured by federal officers who violate their Fourth Amendment rights against
unreasonable searches and seizures, see 403 U.S. at 397; for gender discrimination in employment
in violation of the employee’s Fifth Amendment rights, see Davis v. Passman, 442 U.S. 228
(1979); and for failing to provide adequate medical care to an inmate in violation of his Eighth
Amendment rights, see Carlson v. Green, 446 U.S. 14 (1980). “[T]he Court has urged ‘caution’
before ‘extending Bivens remedies into any new context.’” Ziglar, 137 S. Ct. at 1854 (quoting
Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001)). The context is new if the case
differs in a “meaningful way” from previous Bivens cases decided by the Supreme Court. Ziglar,
137 S.Ct. at 1859.
Liberally construed, Jelks’s complaint alleges Defendants discriminated against him on the
basis of his race by refusing to pay various benefits, a purported violation of the equal protection
component of the Fifth Amendment’s due process clause.

(See doc. 1 at 6-9).

Racial

discrimination in the payment of benefits—and racial discrimination in the abstract, separate from
employment—is entirely unlike any previously-recognized Bivens action, and is therefore a new
context requiring the court to assess whether “special factors counselling hesitation in the absence
of affirmative action by Congress” exist. Ziglar, 137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at
18 (internal quotation marks omitted)). The inquiry focuses on “whether the Judiciary is well
suited, absent congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed.” Id. at 1857-58. One factor suggesting a Bivens claim is
foreclosed is when Congress has established an alternative remedial structure. Id. at 1858.
Regardless of the basis—constitutional or otherwise—on which Jelks complains of a denial
of benefits, there is an alternative remedial scheme established by Congress to challenge such a
10

denial: the VJRA. Although the Eleventh Circuit has apparently not addressed the issue directly,
every circuit court to consider the issue has determined a Bivens action is foreclosed by the VJRA.
See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995); Sugrue v. Derwinski, 26 F.3d 8, 12 (2d Cir.
1994); Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995); Mehrkens v. Blank, 556 F.3d 865,
870 (8th Cir. 2009). Allowing an action for damages when a plaintiff claims a discriminatory basis
for a denial of benefits would necessarily interfere with the VJRA’s remedial scheme by
completely bypassing it solely based on an allegation of discrimination, notwithstanding (as
described above) Congress’s decision to remove the district courts from the review process. The
practical implications and weight of authority counsel strongly against finding an implied damages
remedy under Bivens for a denial of benefits based on racial discrimination, and the undersigned
declines to do so. Therefore, Jelks’s Bivens claims are due to be dismissed under Rule 12(b)(6)
for failure to state a claim.
C. Exhaustion of Claims Under the FTCA
Defendants argue Jelks has not complied with the requirements of the FTCA with respect
to any state law tort claims he asserts because he has failed to exhaust administrative remedies
prior to filing suit.7 Although Jelks does not specifically identify the legal theories he proceeds
under beyond invoking § 1983, portions of his complaint could plausibly be read to include tort
claims. For example, Jelks claims in a paragraph labeled “1A. Allowed a release of information”

7

Defendants also contend Jelks has failed to satisfy exhaustion requirements under Title
VII prior to bringing a suit based on employment discrimination. (See doc. 8 at 7-8, 16). However,
Jelks does not appear to assert an employment discrimination claim; he mentions his wrongful
termination in May 2007, but alleges only that his benefits were denied because of the wrongful
termination suit he filed. (See doc. 1 at 5-6). And given the chance to explain this, Jelks clarifies
in his response that his wrongful termination is implicated in this suit only to the extent it explains
the denial of his benefits. (See doc. 11 at 2).
11

that “[a] clerk at the VA Hospital in Murfreesboro, TN . . . completely CHANGED and altered my
medical records, to make them say things that Dr Saha did not write in them” (presumably a
reference Defendant Melissa S. Kindley, identified in the complaint as “release of information
clerk, VA hospital Murfreesboro, TN,” (see doc. 1 at 1)). (Doc. 1 at 6). To the extent this (or any
other of Jelks’s claims) constitutes a tort claim, the undersigned addresses Defendants’ contentions
regarding exhaustion under the FTCA.
The FTCA is a limited waiver of sovereign immunity by the United States. Under the
FTCA,
[a]n action shall not be instituted upon a claim against the United States for money
damages or lost property . . . caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or
employment, unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the
agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). This is a jurisdictional bar to suit; if a claimant has not exhausted his
administrative remedies, he may not bring suit in federal court. United States v. Kubrick, 444 U.S.
111, 117–18 (1979).
In support of their contention Jelks has failed to exhaust his administrative remedies,
Defendants attach the declaration of W. Robert Boulware, an attorney with the VA’s Office of
Regional Counsel in Montgomery, Alabama. (Id. at 15-16). Boulware states there has been no
Federal Tort Claims Act (“FTCA”) administrative claim for negligence or wrongful conduct filed
by Jelks as of December 8, 2016. (Id.). Jelks has not refuted this contention, even by assertion.
Therefore, to the extent he alleges tort claims against Defendants, those claims are due to be
dismissed for lack of subject-matter jurisdiction.

12

Conclusion
For the foregoing reasons, the Court lacks subject-matter jurisdiction over Jelks’s claims
to the extent they relate to his veterans’ benefits and state law tort claims. Additionally, Jelks has
failed to state a claim under Bivens for constitutional violations by Defendants. Therefore,
Defendants’ motion to dismiss, (doc. 8), is due to be GRANTED insofar as it seeks dismissal of
Jelks’s claims. Jelks’s motion for a hearing is DENIED.
DONE this 13th day of September, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

13