Secret et al v. Roe et al

Filing 18

ORDER: This case is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to CLOSE THIS CASE. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 10/3/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JEANETTE BRAXTON SECRET,
ET AL.,
Plaintiffs,
v.

Case No. 8:17-cv-1830-T-33TBM

PHIL ROE, MD, ET AL.,
Defendants.
___________________________/
ORDER
This matter is before the Court sua sponte. As explained
below, the Court dismisses this action without prejudice and
directs the Clerk to close the case.
Discussion
Pro

se

Plaintiffs

Jeanette

Braxton

Secret,

Carmen

Braxton, Jeanette Braxton Secret Family Trust, and Andrew K.
Jones Family Trust initiated this action on July 31, 2017,
naming the following Defendants: (1) Phil Roe, MD, Chairman,
House Committee on Veterans’ Affairs; (2) Johnny Isakson,
Majority

Senate

Committee

on

Veterans’

Affairs;

(3)

Jon

Tester, Minority Senate Committee on Veterans’ Affairs; (4)
David J. Shulkin, Secretary of Veterans Affairs; (5) Catherine
Mitrano, District Chief Counsel; (6) Kathy Simpson, Deputy
Chief Counsel; (7) E. Douglas Bradshaw, Chief Counsel, Torts
Law Group; (8) Dr. Abu T. Siddigui, MD, Staff Physician and

Attending Physician; (9) Dr. Abelardo Augustines, Primary Care
Doctor; (10) Anuja Pradhan, MD, Hematology/Oncology; (11)
Sonia A Cotton, Radiology Nurse; (12) Mr. Robinson Ang,
Physical Therapist; (13) David M. Crowder, RN; (14) Lawrence
Matthews, 5B Nurses Station; (15) Dr. McDonald, MD, Lung
Doctor; (16) Mr. Ariel Rodriguez, Chief, Patient Advocate;
(17) Ronald Gathright, Patient Advocate; (18) Terrence Watts,
5th District- Orlando VAMCA; and (19) Tatishka Musgrove, VAMC,
Bay Pines Pines VAHCS. (Doc. # 1).
The pro se Complaint provides an account of the death of
Andrew Kirk Jones, a 79-year old veteran, at the Bay Pines VA
Hospital, located in Hillsborough County, Florida. Plaintiffs
label the Complaint as a “Complaint for a Civil Case Alleging
Negligence” and array a host of claims, including but not
limited to, medical malpractice and wrongful death.
Plaintiffs accompanied the Complaint with an Application
to Proceed in forma pauperis. (Doc. # 2).

The Magistrate

Judge examined the Complaint and the Application to proceed in
forma pauperis and filed a Report and Recommendation on August
11, 2017, recommending denial of the Application for in forma
pauperis status without prejudice. (Doc. # 7). The Magistrate
Judge also recommended dismissal of the Complaint with the
opportunity to file an Amended Complaint within 20 days. (Id.)
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The Magistrate Judge recommended that the Court “grant Ms.
Braxton Secret permission to file a Financial Affidavit fully
setting forth her income and liabilities and an Amended
Complaint,

which

clearly

sets

forth

a

cause

of

action

consistent with the pleading requirements of the Federal Rules
of Civil Procedure and which clearly states the basis of the
Court’s jurisdiction.” (Id. at 10).
Although Plaintiff Braxton Secret filed various documents
after the Report and Recommendation was issued, she did not
file an objection to the Report and Recommendation during the
period for filing objections.

After conducting a careful

examination of the entire file as well as of the Report and
Recommendation,

the

Court

adopted

the

Report

and

Recommendation in an Order dated August 29, 2017. (Doc. # 14).
In the Order adopting the Report and Recommendation, this
Court explained that Plaintiff had the opportunity to file an
Amended Complaint by September 12, 2017, and that any failure
to do so would warrant dismissal of the action without
prejudice.

(Id.

at

5).

The

Court

also

explained

that

Plaintiff’s purported Amended Complaint (Doc. # 10), filed on
August 20, 2017, “does not meet the requirements for a
Complaint under the Federal Rules of Civil Procedure, and it
appears to be the same Complaint that she initially filed,
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with the inclusion of some handwritten notes.”
3).

(Doc. # 14 at

The Court also ordered Plaintiff to either pay the full

filing fee of $400 or file a renewed application to proceed in
forma pauperis by September 12, 2017. (Id. at 5).
On September 1, 2017, after this Court adopted the Report
and Recommendation, Plaintiff filed a one-page document titled
“Motion to Objection to the Report and Recommendation” and
stating: “Under Rule 6.02 Review of Magistrate Judges’ Reports
and Recommendations motioning the United States District Judge
rejects

in

whole

recommendation.

the

Magistrate

Judges’

report

and

The Complaint does state a cognizable claim

upon which relief may be granted in III. Statement of Claim;
IV. Relief.”
portions

of

(Doc. # 16).
her

Complaint

Plaintiff attached various
for

a

Civil

Case

Alleging

Negligence.
The Court notes that the Objection, filed after the
Report and Recommendation was adopted, is untimely and does
not provide a basis for rejecting the already-adopted Report
and Recommendation.

The Court overrules the Objection and

reiterates that Plaintiff was authorized to file an Amended
Complaint that states a cognizable claim by September 12,
2017.

She did not do so.

The re-filing of her original

Complaint with minor changes and with various handwritten
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notations does not count as filing an Amended Complaint in
accordance with Federal Rules of Civil Procedure 8 and 10.
Plaintiff

also

filed

a

“Motion

for

Count-Appointed

Counsel” (Doc. # 15) on August 31, 2017. She attached another
version of her Complaint to that document, with each separate
page as an individual attachment.

As with the other versions

of her Complaint, this version names a long list of individual
Defendants but does not attribute specific actions to the
Defendants so as to put the Defendants on notice of the claims
made against them.

For instance, she names “Johnny Isakson,

(Majority)

Committee

Senate

on

Veterans’

Affairs”

and

“Catherine Mitrano, District Chief Counsel” as Defendants, but
does not attribute any actions to Iaskson or Mitrano, and does
not mention these individuals (other than naming them as
Defendants) in any version of the Complaint.

The Magistrate

Judge denied the motion to appoint counsel on September 6,
2017.

(Doc. # 17).
The Court takes note that Plaintiff has been warned

regarding the requirements for asserting her proffered claims.
For

instance,

the

Magistrate

Judge

provided

a

careful

explanation of the requirements for pursuing relief under the
Federal Tort Claims Act.

(Doc. # 7 at 7-9).

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Among other

things, the Plaintiff must name the United States as a
Defendant.

She has not done so.

In addition, Plaintiff has not paid the filing fee and
has also neglected to file a renewed application to proceed in
forma pauperis. These operative deadlines have now expired.
In sum, Plaintiff has failed to comply with this Court’s
August 29, 2017, Order. The Court previously warned Plaintiff
that failure to comply would result in the dismissal of this
action.

(Doc. # 14 at 5).

Accordingly, pursuant to Rule 41

(b) of the Federal Rules of Civil Procedure and this Court’s
inherent authority to manage the docket, the Court dismisses
this action without prejudice and directs the Clerk to close
the case.

Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d

1333, 1337 (11th Cir. 2005).
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

This case is DISMISSED WITHOUT PREJUDICE.

(2)

The Clerk is directed to CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of October, 2017.

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