Shepard v. United States Department of Veteran Affairs et al

Filing 24

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathleen M. Tafoya on 2/25/19 re 9 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by St. Davids' Medical Center. This court respe ctfully RECOMMENDS that Defendant St. Davids Healthcare Partnership, L.P., LLP d/b/a St. Davids North Austin Medical Centers Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim (Doc. No. 9) be GRANTED and that the claims against Defendant St. Davids Medical Center be dismissed without prejudice. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18–cv–01098–PAB–KMT
MAXINE SHEPARD,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERAN AFFAIRS,
UNITED STATES DEPARTMENT OF DEFENSE, and
ST. DAVID’S MEDICAL CENTER,
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya
This case comes before the court on “Defendant St. David’s Healthcare Partnership, L.P.,
LLP d/b/a St. David’s North Austin Medical Center’s Motion to Dismiss for Lack of Personal
Jurisdiction and Failure to State a Claim” (Doc. No. 9 [Mot. Dismiss], filed May 31, 2018).
Plaintiff filed her response on June 13, 2018 (Doc. No. 11 [Resp. Mot. Dismiss]), and Defendant
filed its reply on June 27, 2018 (Doc. No. 12 [Reply Mot. Dismiss]).
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed her original Complaint on May 8, 2018, asserting
jurisdiction pursuant to the following five federal statutes: (1) 28 U.S.C. § 1346(b), jurisdiction
as to the United States as a Defendant; (2) 38 U.S.C.§ 1151, benefits for veteran’s disability; (3)
42 U.S.C § 12182, Americans with Disabilities Act prohibition of discrimination by a public

accommodation; (4) 42 U.S.C. § 1983, civil action against a state actor; and (5) 7 U.S.C. § 2131–
§ 2157, the Animal Welfare Act of 1966. (Doc. No. 1 [Compl.].) On May 17, 2018, Plaintiff
filed her First Amended Complaint, in which her allegations against the defendants are contained
in the following paragraph:
The Defendants have engaged in outrageous, negligent and illegal conduct that
should be punished to the maximum extent under the law. The Defendants, the
Department of Veterans Affairs, unlawfully implanted Plaintiff, Maxine Shepard
with microchips, caused harm to her daughter, and unlawfully entered Plaintiff’s
home and implanted Plaintiff's service animal with a microchip on the right side
of his skull.
(Doc. No. 6 [Am. Compl.].) Because the Complaint was superseded by the Amended
Complaint, neither Defendant nor the court need consider assertions or documents provided only
in the Complaint and not the Amended Complaint. However, both Defendant’s Motion and
Plaintiff’s Response rely on the allegations in the original Complaint. As such, the court
considers Plaintiff’s original Complaint as well as her Amended Complaint.
In Plaintiff’s original Complaint, Plaintiff alleges she was injured “as a result of her
surgery at the VAMC [Veterans Affairs Medical Center] in 2005 by a physician who during the
course and scope of his duties, unlawfully and without informed consent implant[ed] the Plaintiff
with microchips.” (Id. at 2, ¶ 9(b).) Plaintiff states the surgery occurred at the VAMC in Little
Rock, Arkansas. (Id. at 3, ¶ 9(c).) Plaintiff also claims a microchip device was implanted at the
VA Medical facility in Dallas, Texas. (Id. at 3, ¶ 11.) Plaintiff alleges,
For thirteen years, Plaintiff has been bound, enslaved by a government who
sought to control her indefinitely. Control her thoughts, control who she talked
to, control every move she made. And if she didn’t talk, or act the way they
approved of, all they had to do was send a beam to her skull which penetrated her
brain. All they had to do was change the frequency of the devices. According to
the government pain was needed to change behavior. And according to them, I
needed to experience lots of pain. Thirteen years of pain to be exact.
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(Id. at 3, ¶ 9(d).)
Plaintiff also assert claims on behalf of her daughter1, who Plaintiff asserts suffered
harmful effects “from witnessing (and in some cases being coerced into participating in)
psychological harassment against her own parent and threats against her safety if she revealed
any actors of agents or their participation” (id. at 5, ¶ 26), and on behalf of her service dog, who
Plaintiff alleges has been implanted “with a microchip on the right side of his skull, for his pain
and suffering” (id., ¶ 27) and “in order to keep track of the Primary Plaintiff” (id., ¶ 30).
Regarding Defendant St. David’s Healthcare Partnership, L.P., LLP d/b/a St. David’s
North Austin Medical Center (“NAMC”), incorrectly identified in the Amended Complaint as St.
David’s Medical Center (see Mot. at 1), Plaintiff alleges the defendant “[f]alsif[ied] a medical xray . . . to hide/conceal image of microchip in Plaintiff[’s] chest” (Am. Compl. at 4, ¶ 14) and
that on December 20, 2015, Defendant NAMC “corroborated with the VA to conceal the identity
of the microchip which was implanted by the VA in 2005, from an x-ray.” (Id. at 6, ¶ 34.)
Defendant NAMC seeks dismissal of Plaintiff’s claims for lack of personal jurisdiction
and for failure to state a claim upon with relief can be granted.2 (See Mot.)

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Plaintiff attaches her daughter’s immunization record in support of Plaintiff’s allegations that
Plaintiff’s daughter was immunized at the request of a college at which Plaintiff’s daughter had
been accepted for admission. (Compl. at 29, ¶ 55; Attach. 1 at 144.) Plaintiff claims her
daughter received a vaccine to protect against the ANTHRAX virus. (Id.) It appears at the time
Plaintiff filed her initial complaint, Plaintiff’s daughter was an adult with a birthdate of May 13,
1997. (See Compl., Attach. 1 at 144.)
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The court recommends dismissal, infra, based on lack of personal jurisdiction. As such, it need
not address Defendant’s other argument.
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STANDARDS OF REVIEW
A.

Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] [her] pleadings and other

papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also
Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A
court may not assume that a plaintiff can prove facts that have not been alleged, or that a
defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors
of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v.
New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). The plaintiff’s pro se status does not entitle her to
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B.

Lack of Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss

a complaint for “lack of jurisdiction over the person.” Fed. R. Civ. P. 12(b)(2). Plaintiff bears
the burden of establishing personal jurisdiction over Defendants. OMI Holdings, Inc. v. Royal
Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). In the preliminary stages of litigation, Plaintiff=s

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burden is light. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Where, as here,
there has been no evidentiary hearing, and the motion to dismiss for lack of personal jurisdiction
is decided on the basis of affidavits and other materials, Plaintiff need only make a prima facie
showing that jurisdiction exists. Id.
Plaintiff “has the duty to support jurisdictional allegations in a complaint by competent
proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate
pleading.” Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989). The allegations in
Plaintiff’s complaint “ ‘must be taken as true to the extent they are uncontroverted by the
defendant’s affidavits.’ ” Wenz, 55 F.3d at 1505 (quoting Doe v. Nat’l Med. Servs., 974 F.2d
143, 145 (10th Cir. 1992)). If the parties present conflicting affidavits, all factual disputes must
be resolved in Plaintiff=s favor, and “plaintiff=s prima facie showing is sufficient notwithstanding
the contrary presentation by the moving party.” Id. (citation omitted). Only well-pleaded facts,
as opposed to mere conclusory allegations, must be accepted as true. Id.
The personal jurisdiction analysis begins with two questions. First, the court asks
“whether any applicable statute authorizes the service of process on defendants.” Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Trujillo v.
Williams, 465 F.3d 1210, 1217 (10th Cir. 2006). Second, the court “examine[s] whether the
exercise of such statutory jurisdiction comports with constitutional due process demands.” Id.
The Due Process Clause permits the exercise of personal jurisdiction over nonresident
defendants when two conditions are met. First, a defendant must have “minimum contacts” with
the forum state. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, if sufficient
minimum contacts are shown, the Due Process Clause requires that the exercise of personal

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jurisdiction over the defendant would not “offend traditional notions of fair play and substantial
justice.” Impact Prods., Inc. v. Impact Prods., LLC, 341 F.Supp.2d 1186, 1190 (D. Colo. 2004).
The “minimum contacts” standard may be met in two ways. First, a court may,
consistent with due process, assert specific jurisdiction over a nonresident defendant “if the
defendant has purposefully directed his activities at residents of the forum, and the litigation
results from alleged injuries that arise out of or relate to those activities.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotations and citations omitted). Where a
court’s exercise of jurisdiction does not directly arise from or relate to a defendant’s forumrelated activities, the court may nonetheless maintain general personal jurisdiction over the
defendant based on the defendant’s general business contacts with the forum state. Helicopteros
Nacionales de Colombia v. Hall, 466 U.S. 408, 415–16 (1984). However, to be subject to
general jurisdiction in a forum state, a defendant’s affiliations with that state must be “so
‘continuous and systematic’ as to render [it] essentially at home” there. Daimler AG v. Bauman,
571 U.S. 117, 127 (2014) (internal quotation marks and citation omitted).
ANALYSIS
None of the federal statutes upon which the plaintiff asserts jurisdiction provides for
nationwide service of process. See 28 U.S.C. § 1346(b); 38 U.S.C.§ 1151; 42 U.S.C § 12182; 42
U.S.C. § 1983; 7 U.S.C. § 2131–§ 2157. Accordingly, the court proceeds to the second part of
the personal jurisdiction analysis. See Dudnikov, 514 F.3d 1063, 1070.
Plaintiff states that Defendant NAMC “is a civilian hospital located in Austin, TX.”
(Am. Compl. at 6, ¶ 34.) However, Plaintiff’s allegations that Defendant NAMC “[f]alsif[ied] a
medical x-ray . . . to hide/conceal image of microchip in Plaintiff[’s] chest” (Am. Compl. at 4, ¶

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14) and that it “corroborated with the VA to conceal the identity of the microchip which was
implanted by the VA in 2005, from an x-ray” (id. at 6, ¶ 34), are insufficient to show that
Defendant NAMC directed any of its alleged actions at Colorado. Burger King Corp., 471 U.S.
at 472. Plaintiff’s Complaint and Amended Complaint are devoid of any allegations that
Defendant NAMC has any general business contacts with Colorado. Helicopteros Nacionales,
466 U.S. at 415–16. Finally, Defendant NAMC’s alleged conduct occurred in Texas, and
Plaintiff does not allege that Defendant NAMC engages in continuous and systematic contacts
with Colorado that would render it at home here. See Daimler AG, 571 U.S. at 127.
Plaintiff has not sustained her prima facie burden of showing that personal jurisdiction
exists. In the absence of a prima facie showing of personal jurisdiction, Defendant NAMC’s
motion to dismiss for lack of personal jurisdiction should be granted.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that “Defendant St. David’s Healthcare Partnership, L.P., LLP d/b/a
St. David’s North Austin Medical Center’s Motion to Dismiss for Lack of Personal Jurisdiction
and Failure to State a Claim” (Doc. No. 9) be GRANTED and that the claims against Defendant
St. David’s Medical Center be dismissed without prejudice.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will

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not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579–80 (10th Cir. 1999) (stating that a
district court’s decision to review a magistrate judge’s recommendation de novo despite the lack
of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real
Prop., 73 F.3d at 1059–60 (stating that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52
F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those
portions of the ruling by failing to object to certain portions of the magistrate judge’s order);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their
right to appeal the magistrate judge’s ruling by their failure to file objections). But see Morales-

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Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not
apply when the interests of justice require review).
Dated this 25th day of February, 2019.

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