Altemus v. US Department of Veteran Affairs
Filing
61
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 01/12/2022. (smg)
Case 1:14-cv-00715-LPS Document 61 Filed 01/12/22 Page 1 of 6 PageID #: 587
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM R ALTEMUS,
Plaintiff,
Civ. No. 14-715-LPS
V.
U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
William R. Altemus, Millsboro, Delaware, Pro Se Plaintiff.
David C. Weiss, U.S. Attorney, and Shamoor Anis, Assistant U.S. Attorney, Wilmington, Delaware,
Counsel for Defendant.
MEMORANDUM OPINION
January 12, 2022
Wilmington, Delaware
Case 1:14-cv-00715-LPS Document 61 Filed 01/12/22 Page 2 of 6 PageID #: 588
U. S. District Judge:
I.
INTRODU CTION
Plaintiff William R. Altemus ("Plaintiff'), who proceeds prose, commenced this action on
June 6, 2014. He filed an Amended Complaint on March 2, 2021. (D.I. 54) Before the Court is
Defendant's motion to dismiss and Plaintiffs motion for summary judgment. (D.I. 55, 59)
II.
BACKGROUND
Plaintiff, a U.S. Air Force veteran, has sought and received medical and disability benefits
from the Department of Veterans Affairs (VA") . The original complaint raised the following
claims: (1) Plaintiff was treated unfairly and unlawfully in connection with his application for
increased disability benefits; (2) medical malpractice; (3) defamation; (4) violations of constitutional
rights; and (5) violations of the Freedom of Information and/ or Privacy Act ("FOIA/ PA"), 5 U.S.C.
552 and 552a. On November 5, 2015, Plaintiff filed a motion to withdraw his complaint, construed
by the Court as a motion to voluntarily dismiss the complaint. (D.I. 40, 42) The case was closed on
November 16, 2015. (D.I. 42)
On April 27, 2020, Plaintiff filed a motion to reopen the case, the case was reopened, and
Plaintiff filed an Amended Complaint on March 2, 2021. (D.I. 43, 53, 54) The Amended Complaint
seeks to obtain evidentiary documents, including all electronic documents, from the VA not
provided for 2012 to 2021 and "reconfirms there is no request for court involvement regarding
benefit award. 1 (D.I. 54 at 3)
Defendant moves for dismissal pursuant to Fed R. Civ. P. 12(6)(6) on the grounds that
Plaintiff never submitted his FOIA request to the VA and failed to exhaust his administrative
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The Amended Complaint states that in December 2017 Plaintiff successfully obtained 100 percent
total disability without any new evidence. (D.I. 54 at 2)
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remedies prior to filing suit. (D.I. 55 at 1) When Plaintiff failed to file a response to the motion, he
was ordered to show cause why the case should not be dismissed for failure to prosecute. (D.I. 56)
Plaintiff filed a response and a week later filed a motion for summary judgment. 2 (D.I. 57, 59)
Defendant opposes the motion. (D.I. 60)
III.
LEGAL STANDARDS
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(6)(6) requires the
Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223
(3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. L itig., 114 F.3d 1410,
1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to
dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them
in the light most favorable to plaintiff, plaintiff is not entitled to relief." M aio v. Aetna, Inc., 221 F.3d
472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See A shcroft
v. Iqbal, 556 U.S. 662, 678 (2009); BellA tL Corp. v. Twombjy, 550 U.S. 544, 555 (2007). A plaintiff
must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. Ciry of
Shelby, 574 U.S. 10 (2014). A complaint may no t dismissed, however, for imperfect statements of
the legal theory supporting the claim asserted. See id. at 10. " In evaluating a motion to dismiss," the
Court "may consider documents that are attached to or submitted with the complaint .. . 'matters
incorporated by reference or integral to the claim, items subject to judicial notice, matters of public
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The Court finds Plaintiff has shown cause why the case should not be dismissed.
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record, orders, [and] items appearing in the record of the case."' Buck v. Hampton Twp. Sch. Dist., 452
F.3d 256, 260 (3d Cir. 2006).
"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief
above the speculative level on the assumption that the allegations in the complaint are true (even if
doubtful in fact)."' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twomb!J, 550
U.S. at 555). A claim is facially plausible "when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. At bottom, "[t]he complaint must state enough facts to raise a reasonable
expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim.
Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation
marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and
unwarranted inferences," Sch~lki/1 Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d
Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his Amended
Complaint:, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks
omitted).
IV.
DISCUSSION
A.
Motion to D ismiss
Defendant seeks dismissal on the grounds that the Amended Complaint contains no legal
claims and, instead, requests documents and, therefore, is governed by the Freedom of Information
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Act ("FOIA"). (D.I. 55) Defendant argues that Plaintiff never submitted a FOIA request to the VA
and did not exhaust his administrative remedies prior to filing suit.
To the extent Plaintiff raises a FOIA claim, the claim fails as pled. "[T)he FOIA requires
exhaustion of the administrative appeals process before an individual may seek relief in the district
court." Conlry v. Fed. Bureau of Investigation, 714 F. App'x 191, 194 (3d Cir. 201 7) (quoting McDonnell v.
United States, 4 F.3d 1227, 1240 (3d Cir. 1993)) . The Amended Complaint alleges that Plaintiff's
attempts to resolve issues "administratively failed" but does not provide facts to explain this
statement. (D.I. 54 at 1) In Plaintiff's response to the show cause order, he states that he "pursued
significant efforts for administrative resolve over the years." (D.I. 57 at 3) He also provides a copy
of a complaint that refers to his numerous FOIA requests, but the list of FOIA requests is not
included in the Amended. Complaint. (See D.I. 57 at Ex. 2)
As pled, the Amended Complaint does not specifically identify the FOIA requests made by
Plaintiff or whether he exhausted administrative remedies as to each request. Therefore,
Defendant's motion to dismiss will be granted. (D.I. 55) Plaintiff will be given leave to file a second
amended complaint to cure his pleading defects.
B.
Motion for Summary Judgment
Plaintiff's motion for summary judgment is premature. (D.I. 59) A scheduling order has not
been entered and discovery has not yet commenced. Therefore, the motion will be denied without
prejudice as premature.
V.
CONCLUSION
For the above reasons, the Court: (1) finds that Plaintiff has shown cause why the case
should not be dismissed; (2) will grant Defendant's motion to dismiss (D.I. 55); (3) will give Plaintiff
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leave to file a second amended complaint; and (4) will deny without prejudice as premature
Plaintiff's motion for summary judgment (D.I. 59).
An appropriate Order will be entered.
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