Caldwell v. Klinker et al

Filing 31

ORDER: Defendants United States Department of Veterans Affairs and United States Department of Health and Human Services' Motion to Dismiss Second Amended Complaint 22 is GRANTED. Caldwell has until and including February 16, 2015, to file his Third Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 1/27/2015. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEITH ROBERT CALDWELL, SR.,
Plaintiff,
v.

Case No. 8:14-cv-2708-T-33EAJ

U.S. DEPARTMENT OF VETERANS
AFFAIRS, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
HOSPITAL CORPORATION OF
AMERICA HOLDINGS, INC.,
Defendants.
________________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants

U.S.

Department

of

referred

to

Department
Health

as

the

and

of

Veterans

Human

Affairs

Services’

“Government”)

and

U.S.

(collectively

Motion

to

Dismiss

Plaintiff’s Second Amended Complaint (Doc. # 22), filed on
January 9, 2015. Pro Se Plaintiff Keith Robert Caldwell, Sr.
filed a document entitled “Plaintiff Keith Robert Caldwell
Sr. Response to Defendant Sharon Hayes’ Motion to Dismiss
Plaintiff’s Amended Complaint That was Granted by The Court
on December 23, 2014” on January 26, 2015. (Doc. # 24). This
Court construes this document to be Caldwell’s response in
opposition

to

the

Motion

to

Dismiss

the

Second

Amended

Complaint. After due consideration of the pleadings filed,
this Motion is granted.
I. Background
On

October

30,

2014,

Caldwell

initiated

this

action

against Suzanne Klinker, Susan Cutchall, Sharon Hayes, and
John Timberlake, setting forth various claims for disregard
of health and welfare of veterans, violations of Florida’s
Baker Act law, and medical malpractice. (See Doc. # 1). In
the

Complaint,

jurisdiction

Caldwell

over

this

contended
action

as

that

this

Defendants

Court

had

allegedly

violated his civil and constitutional rights. (Id.). Upon
review of the Complaint, the Court determined that it lacked
subject matter jurisdiction over this action and dismissed
the Complaint. (Doc. # 5). Caldwell then filed an Amended
Complaint on November 10, 2014. (Doc. # 7). Caldwell served
Hayes, individually, with a copy of the Amended Complaint on
November 13, 2014. (Doc. # 12). Thereafter, on December 4,
2014, Hayes filed a Motion to Dismiss pursuant to 12(b)(1)
and 12(b)(6). (Id.).
On December 23, 2014, this Court entered an Order granting
the Motion to Dismiss and granted Caldwell leave to file a
Second Amended Complaint. (Doc. # 13). Caldwell filed his
Second Amended Complaint on January 5, 2015, dropping the

2

previously named defendants and adding as Defendants the U.S.
Department of Veterans Affairs, the U.S. Department of Health
and

Human

Services,

and

Hospital

Corporation

of

America

Holdings, Inc. (Doc. # 18). Thereafter, on January 9, 2015,
the Government filed the present Motion to Dismiss (Doc. #
22), which is ripe for this Court’s review.
II. Legal Standard
A. Rule 12(b)(1)- Lack of Subject Matter Jurisdiction
Federal

courts

are

courts

of

limited

jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001). Motions to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may
attack jurisdiction facially or factually. Morrison v. Amway
Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).
A facial attack on the complaint requires “the court
merely to look and see if the plaintiff has sufficiently

3

alleged a basis for subject matter jurisdiction, and the
allegations in [the] complaint are taken as true for the
purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)(quoting Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks,
in comparison, challenge “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings. . . .”
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(quoting
Lawrence, 919 F.2d at 1529). When the jurisdictional attack
is factual, the presumption of truthfulness afforded to a
plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo, 175 F.3d at 960. Because the very power of the Court
to hear the case is at issue, the Court is free to weigh
evidence outside the four corners of the complaint. Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982).
B. Rule 12(b)(6) - Failure to State a Claim
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th

4

Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for 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, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
II.

Discussion
It is the Government’s position that the only proper

Defendant

to

Caldwell’s

negligence

5

claim

is

the

United

States.

(Doc.

#

22

at

5).

Specifically,

the

Government

contends that “under Section 2679(b) of Title 28, United
States Code, the exclusive remedy for a state law tort claim
against a federal employee acting within the scope of his
employment is an action against the United States under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2672 (‘FTCA’).”
(Id.). Furthermore, the Government states that “the Court
lacks subject matter jurisdiction over the claims asserted by
[Caldwell] because he failed to exhaust his administrative
remedies under the FTCA.” (Id. at 6). The Government asserts
that Caldwell “alleges that the acts or omissions by the
defendants occurred between August 16, 2014, and October 22,
2014. Nowhere does the plaintiff allege the filing of a claim
with the VA or with HHS.” (Id. at 6-7).
A plaintiff bringing a claim against the United States
under the FTCA must first present the claim to the appropriate
federal agency and wait for the agency to finally deny it.
Burchfield v. United States, 168 F.3d 1252, 1254-55 (11th
Cir. 1999). An agency's failure to dispose of a claim within
six months is deemed to be a final denial. Id.; see 28 U.S.C.
§ 2675(a). A district court only has jurisdiction over an
FTCA

action

if

the

plaintiff

6

has

met

section

2675(a)'s

requirements. Id.; see Bush v. United States, 703 F.2d 491,
494 (11th Cir. 1983).
Moreover,

the

Government

contends

that

sovereign

immunity bars constitutional tort claims against the United
States and its federal agencies. (Doc. # 22 at 7). Since
Caldwell asserts a due process violation under the Fifth and
Fourteenth Amendments, the Government argues that sovereign
immunity bars these claims as Caldwell has not sought nor
received a waiver of immunity for his claims. (Id. at 8).
Construing Caldwell’s Second Amended Complaint liberally
based on his pro se status, the Court reaches the inescapable
conclusion that, as the Second Amended Complaint is pled,
this

Court

lacks

subject

matter

jurisdiction

over

this

action. The Court has no obligation to hypothesize federal
claims, even considering Caldwell’s pro se status. See Gibbs
v. United States, 865 F. Supp. 2d 1127, 1151 (M.D. Fla. 2012)
(“The leniency afforded to pro se pleadings does not give a
court license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading in order to sustain
an action.”)(internal quotation omitted). As Caldwell has
alleged negligence and malpractice claims against departments
of the United States, his failure to set forth his pursuit of
administrative remedies, at present, is fatal to his case.

7

Furthermore, from the Court’s review, the Second Amended
Complaint

consists

incoherent

factual

entirely

of

allegations,

legal
and

conclusions

fails

to

set

and
forth

cognizable causes of action. As a result, Defendants are
forced to hypothesize based on the vague allegations what
statutory or Constitutional violations Caldwell is asserting.
Pleadings

of

this

nature

violate

Federal

Rule

of

Civil

Procedure 8(a), which requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Accordingly, based on the above, this Court determines
that Caldwell has failed to state a claim and has failed to
establish that this Court has subject matter jurisdiction
over

this

granted.

action.
However,

Therefore,
although

the

the

Governments’

Government

Motion

requests

is

that

Caldwell not be given leave to amend, this is the first
Complaint against these particular Defendants. As such, this
case is dismissed without prejudice so that Caldwell has one
final opportunity to file a Third Amended Complaint - by
February 16, 2015 - to demonstrate that this Court has subject
matter jurisdiction over this action and allege a claim
against all Defendants.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:

8

(1)

Defendants United States Department of Veterans Affairs
and

United

States

Department

of

Health

and

Human

Services’ Motion to Dismiss Second Amended Complaint
(Doc. # 22) is GRANTED.
(2)

Caldwell has until and including February 16, 2015, to
file his Third Amended Complaint.
DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of January, 2015.

Copies: All parties and counsel of record

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