Shah v. Veterans Administration et al

Filing 10

ORDER Granting 3 Plaintiff's Application to Proceed In Forma Pauperis, and Dismissing Complaint. Signed by Judge Edward M. Chen on 11/6/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 11/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FERNANDO SHAH,

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Plaintiff,

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v.

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For the Northern District of California

United States District Court

No. C-12-5293 EMC

VETERANS ADMINISTRATION, et al.,

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Defendants.
___________________________________/

ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS, AND DISMISSING
COMPLAINT
(Docket No. 3)

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Plaintiff Fernando Shah has filed a complaint against the Veterans Administration1 and

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Department of Veterans Affairs. Plaintiff alleges that he suffered a heat stroke and exhaustion

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injury in July 1989 while a member of the military, resulting in disabling physical and psychological

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conditions that exist to this day. He files suit for approval of all VA pension and disability benefits,

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approval of appropriate VA medical examinations and rehabilitation treatments, and approval for

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retroactive consideration. Plaintiff has also filed with the Court an application to proceed in forma

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pauperis.

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I.
A.

DISCUSSION

In Forma Pauperis Application

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When presented with an application to proceed in forma pauperis, a court must first

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determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See

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Plaintiff refers to the Veterans Administration by the acronym “VBA” in his complaint,
suggesting that he intended to name the Veterans Benefits Administration. See Compl., Docket No.
1, at 2.

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Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an

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applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d

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853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339

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(1948)).

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In his application, Plaintiff states that he is currently unemployed. He states that at his last

on April 12, 2011. Plaintiff also lists that he earned approximately $1682 “monthly net” and $2600,

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but does not specify which of these sums was his salary, if either. Plaintiff lists the California EDD

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under his last employment, so it is possible that one or the other of these sums, likely the smaller

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figure, reflects the amount of unemployment insurance he received following his termination. He

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For the Northern District of California

job, he made approximately $16 to $25 per hour, but was suspended on July 28, 2010 and terminated

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United States District Court

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now receives $853 monthly on SSDI. He does not own a home, only has $350 in his bank account,

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and does not have any other assets. Moreover, he owes $5000 on a credit card and approximately

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$4500 in student loans. Given this information, Plaintiff’s application to proceed in forma pauperis

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is granted.

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B.

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Allegations in Complaint
Title 28 U.S.C. § 1915(e)(2) requires a court to dismiss any case in which a litigant seeks

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leave to proceed in forma pauperis if the court determines that the action is (1) frivolous or

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malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The

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determination of whether the litigant has stated a claim is decided under the same standard used in

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Rule 12(b)(6) motions to dismiss. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). In

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considering such a motion, a court must take all allegations of material fact as true and construe

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them in the light most favorable to the nonmoving party, although “conclusory allegations of law

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and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer,

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568 F.3d 1063, 1067 (9th Cir. 2009). While “a complaint need not contain detailed factual

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allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Id.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp v. Twombly, 550 U.S. 544, 556 (2007).

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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer

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possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 556).

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The Court notes that “pro se pleadings are liberally construed, particularly where civil rights

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claims are involved.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A

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court may dismiss as frivolous, however, claims that are clearly baseless, fanciful, fantastic, or

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delusional. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

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Plaintiff’s complaint alleges that he served actively with the 2nd and 3rd Marine Divisions
for four years. Compl., Docket No. 1, at 4. As a result of heat stroke and exhaustion suffered during

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For the Northern District of California

United States District Court

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a force march in Panama in July 1989, he was hospitalized for four days with a body core

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temperature of approximately 104 to 106 degrees. Id. Although the medical service records listed

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the injury as an immediate Medivac, his condition was not recorded medically until approximately

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four hours later. Id. Since that time, when Plaintiff is stressed or exposed to anxiety, he experiences

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ear and head aches, blurred eyesight, and memory problems. Id. He also suffers additional

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psychological and physiological disruptions. For example, a doctor’s visit may trigger abdominal

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and kidney pain, anxiety, hypertension, clotting, and blurred positive and negative memories from

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his July 1989 hospitalization and his time on active military service. Id. Plaintiff has been

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diagnosed with PTSD, hearing loss, abdominal pain, memory loss, and anxiety. Id.

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Plaintiff brings suit under the Americans with Disabilities Act “Title 2 § 21112(3)” and

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“Title 5 § 1177 & 1178 Veterans Act.” Id. at 2. He seeks approval of all VA pension and disability

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benefits, approval of appropriate VA medical examinations and rehabilitation treatments, and

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approval for retroactive consideration. Id. at 6.

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C.

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Americans with Disabilities Act
Plaintiff does not identify why his complaint falls within the ambit of the Americans with

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Disabilities Act (“ADA”), and the cited code section, Title 2 section 21112(3), does not exist,

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although it is possible Plaintiff intended to cite to 42 U.S.C. section 12112, which is part of Title I of

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the ADA and prohibits discrimination in employment. However, Plaintiff does not allege any facts

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with respect to employment.

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As a general matter, Title 2 of the Americans with Disabilities Act prohibits discrimination

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against individuals with disabilities by state and local governments, not the federal government. See

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generally 42 U.S.C. §§ 12131-65. The federal government is prohibited from discriminating against

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individuals with disabilities pursuant to the Rehabilitation Act of 1973. See generally 29 U.S.C. §

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701 et seq. In particular, section 504 of the Rehabilitation Act provides that “[n]o otherwise

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qualified individual with a disability in the United States . . . shall, solely by reason of . . . his

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disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination . . . under any program or activity conducted by any Executive agency . . . .” 29

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For the Northern District of California

United States District Court

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U.S.C. § 794.

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Plaintiff’s ADA claim fails as a matter of law, in that he names federal public entities, not

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state or local public entities. If he were to assert a claim under the Rehabilitation Act, he has not

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pled facts establishing he was discriminated against within the meaning of the Act, but rather that he

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was denied various disability benefits.

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D.

Veterans Benefits

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Plaintiff asserts that he has claims under Title 5, sections 1177 and 1178 of the “Veterans

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Act.” See Compl., Docket No. 1, at 2. It is unclear what law Plaintiff is referencing, as there are

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numerous federal acts referencing “Veterans,” but no “Veterans Act.” See U.S. House of

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Representatives, Office of the Law Revision Counsel, Popular Name Tool

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http://uscode.house.gov/popularnames/popularnames.htm (last visited Nov. 1, 2012). Moreover,

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Title 38 of the U.S. Code, which covers Veterans’ Benefits, does not have a section 1177 or 1178.

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Based on the substance of Plaintiff’s complaint, it appears that he wishes to appeal a

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determination on veterans’ benefits by the VA. See id. at 6. Appeals under the veterans’ laws are

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subject by statute to exclusive jurisdiction by the Board of Veterans’ Appeals, then by the United

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States Court of Appeals for Veterans Claims, and then by the United States Court of Appeals for the

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Federal Circuit. See 38 U.S.C. §§ 7105, 7252, 7292; 77 Am. Jur. 2d Veterans and Veterans’ Laws §

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167 (2012). Thus, even if Plaintiff properly pled a claim for relief under Title 38 of the U.S. Code,

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this Court would not have jurisdiction. Therefore, this cause of action must also be dismissed.

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For Plaintiff’s benefit, the Court directs his attention to the Handbook for Pro Se Litigants,

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which is available along with further information for the parties on the Court’s website located at

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http://cand.uscourts.gov/proselitigants. Mr. Shah may also contact the Legal Help Center, 450

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Golden Gate Avenue, 15th Floor, Room 2796, Telephone No. [phone] extension 8657, for

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free legal advice regarding his claims.

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II.

CONCLUSION

Plaintiff’s application to proceed in forma pauperis is GRANTED. However, his ADA
claim is hereby DISMISSED with prejudice, and his benefits appeal is hereby DISMISSED without

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For the Northern District of California

United States District Court

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prejudice.

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This order disposes of Docket No. 3

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IT IS SO ORDERED.

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Dated: November 6, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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