Galloway v. Weis-Bontke et al
Filing
7
MERIT REVIEW OPINION: SEE Written Opinion. 1) Plaintiff's complaint is dismissed without prejudice to filing an amended complaint by June 6, 2014, in accordance with this order. Failure to file an amended complaint by June 6, 2014, will result in dismissal of this case, without prejudice.2)The clerk is directed to send Plaintiff the standard complaint forms and instructions. Entered by Judge Sue E. Myerscough on 5/29/2014. (ME, ilcd)
E-FILED
Thursday, 29 May, 2014 04:17:04 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
CORY MICHEAL GALLOWAY,
Plaintiff,
v.
DIANE WEIS-BONTKE, et al.,
Defendants.
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14-CV-3025
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and currently incarcerated in the
Sangamon County Jail, challenges his medical treatment for back
pain before he was incarcerated. According to Plaintiff, his
physicians going back to 2009 failed to order effective treatment,
which he believes is a certain kind of back surgery. Plaintiff also
alleges that the Veterans Administration has refused to pay for his
medical treatment, even though Plaintiff is a Veteran.
Because Plaintiff filed this case while incarcerated, the Court
is required to review the Complaint to determine whether Plaintiff
states any federal claims which can proceed in this Court. 28
U.S.C. Section 1915A.
Page 1 of 4
To the extent Plaintiff challenges the denial of veterans'
benefits, federal district courts lack the power to rule on that
challenge. The Veterans Judicial Review Act "establishes the
exclusive review procedure through which veterans may challenge
the VA's adjudication of their benefits claims." Karmatzis v.
Hamilton, 2014 WL 278488 *2 (7th Cir. 2014)(unpublished). Under
that Act, the way to appeal the denial of benefits is to appeal the
decision to the Board of Veteran's Appeals. Id.; 38 U.S.C. Section
7104(a).
The only possible federal claim the Court can discern against
the named Defendants is a potential claim against the United States
under the Federal Tort Claims Act, to the extent the doctors are
federal employees. The action would be against the United States
and not against the doctors individually. See Ingram v. Faruque,
728 F.3d 1239, 1240-41 (10th Cir. 2013)(no Bivens action for
medical claims against Veteran Hospital doctors where FTCA
provided remedy for alleged wrongs); Murrhee v. Principi, 364
F.Supp.2d 782, 786 (C.D. Ill. 2005)(same). However, to pursue
such a claim in federal court, Plaintiff must have first presented his
claims to the appropriate federal agency. 28 U.S.C. Section
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2675(a). Plaintiff makes no allegation that he presented his claims
to the appropriate federal agency as required before filing this
lawsuit. Accordingly, Plaintiff's complaint will be dismissed without
prejudice to filing an amended complaint if he seeks to pursue a
claim under the Federal Tort Claims Act and has exhausted his
administrative remedies under that Act.
Plaintiff may also be trying to pursue a claim that he has been
denied necessary treatment at the Jail. However, none of the
named Defendants work at the Jail, nor does Plaintiff say that he
has tried to obtain medical care at the Jail or filed a Jail grievance
about the lack of medical care. If Plaintiff does intend to file a claim
regarding his current medical treatment, Plaintiff may include that
claim in his amended complaint, naming the individuals who have
denied Plaintiff medical care.
IT IS ORDERED:
1)
Plaintiff's complaint is dismissed without prejudice to
filing an amended complaint by June 6, 2014, in accordance with
this order. Failure to file an amended complaint by June 6, 2014,
will result in dismissal of this case, without prejudice.
Page 3 of 4
2) The clerk is directed to send Plaintiff the standard
complaint forms and instructions.
ENTERED: 5/29/2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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