Robles v. United States

Filing 42

MEMORANDUM AND ORDER-IT IS THEREFORE ORDERED that plaintiff's claim(s) for civil conspiracy to libel and/or slander plaintiff be and hereby are DISMISSED for lack of subject matter jurisdiction.IT IS FURTHER ORDERED that the Clerk is directed to enter judgment in favor of defendant on plaintiff's claim(s) for medical malpractice.IT IS FURTHER ORDERED that the trial set for February 27, 2017 is CANCELLED. Signed by District Judge Kathryn H. Vratil on 2/16/2017.Mailed to pro se party Gabriel M Robles by regular and certified mail ; Certified Tracking Number: 70123460000082626177(ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GABRIEL M. ROBLES,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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CIVIL ACTION
No. 15-4864-KHV

MEMORANDUM AND ORDER
Gabriel M. Robles, pro se, brings suit against the United States of America for claims arising
out of his treatment by medical providers at the Veterans Administration (“VA”).1 See Pretrial
Order (Doc. #31) filed March 30, 2016 at 2-3. Specifically, plaintiff asserts claims under the Federal
Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”) for medical malpractice and civil conspiracy
to libel and/or slander plaintiff. See Pretrial Order (Doc. #31) at 2-3. The case is set for a three-day
bench trial beginning February 27, 2017. On January 25, 2017 the Court entered summary judgment
in favor of defendant on the medical malpractice claim(s). See Memorandum And Order And Order
To Show Cause (Doc. #39) at 11. In addition, the Court ordered plaintiff to show cause in writing
why it should not dismiss the conspiracy claim(s). See id. at 12. Specifically, the Court noted that
under 28 U.S.C. § 2680, the United States’ waiver of sovereign immunity does not apply to certain
intentional torts, including “any claim arising out of . . . libel [or] slander.” Id. (citing 28 U.S.C.
§ 2680(h) and Lipkin v. S.E.C., 468 F. Supp.2d 614, 624 (S.D.N.Y. 2006)). The Court specifically
warned plaintiff that “failure to timely file a response which sufficiently sets forth the factual and

1

Plaintiff also sued various VA facilities. See Complaint (Doc. #1) filed April 1, 2015
at 1. On July 16, 2015, the Court dismissed all claims against the VA and its facilities, finding that
the United States is the only proper defendant. See Order (Doc. 15) at 1-2.

legal basis for such claim(s) will likely result in dismissal of his claim(s) with prejudice without
further notice.” Memorandum And Order And Order To Show Cause (Doc. #39) at 11.
Plaintiff responds to the show cause order with eight pages of rambling accusations, most
of which appear to be unrelated to the claim(s) at hand. See Plaintiff’s Answer To “Order To Show
Cause” Dated January 27, 2017. (Doc. 39) (“Plaintiff’s Response”) (Doc. #40) filed February 6,
2017 at 1-8. Plaintiff alleges that the Court has a pattern and practice of siding “with the party that
can afford legal counsel and is Caucasian.” Id. at 1. In addition, plaintiff points to an alleged
scandal in which the U.S. Attorney’s Office allegedly violated the attorney-client privilege in
criminal cases. See id. at 5, 7.2
Plaintiff suggests that the Court should reconsider its summary judgment ruling on the
medical practice claim. See id. at 8. Plaintiff asserts that defendant filed its motion for summary
judgment in the eleventh hour and “most probably out of time.” Plaintiff’s Response (Doc. #40) at
7. The Court’s scheduling order set a deadline of April 13, 2016 for dispositive motions, including
motions for summary judgment. See Scheduling Order (Doc. #22) filed September 9, 2015 at 8.
Defendant filed its motion for summary judgment on April 4, 2016, nine days before the deadline
expired. See Defendant’s Motion To Dismiss Complaint Or, In The Alternative, Motion For
Summary Judgment (Doc. #32). The Court granted summary judgment because plaintiff did not
designate expert witness testimony on the applicable standard of care or to prove causation.3 See

2

Plaintiff questions whether “corruption” is why the Court encourages pro se litigants
to use public libraries for computer access. Plaintiff’s Response (Doc. #40) at 7.
3

The Court also found that plaintiff’s alleged injury does not fall under the common
knowledge of the jury. See Memorandum And Order And Order To Show Cause (Doc. #39) at 1011.
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Memorandum And Order And Order To Show Cause (Doc. #39) at 10. Plaintiff seems to suggest
that the Court should have raised the issue of expert witnesses during pretrial proceedings. See
Plaintiff’s Response (Doc. #40) at 4-5. The Court, however, cannot serve as advocate for a pro se
litigant. See Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). To the extent that plaintiff asks
the Court to reconsider its summary judgment ruling, it declines to do so. See D. Kan. Rule 7.3(b)
(motion for reconsideration must be based on intervening change in controlling law, availability of
new evidence or need to correct clear error or prevent manifest injustice); Cline v. S. Star. Cent. Gas
Pipeline, Inc., 370 F. Supp.2d 1130, 1132 (D. Kan. 2005) (motion for reconsideration inappropriate
for issues already addressed or new arguments or facts which movant could have presented
originally).
As noted, in the show cause order, the Court directed plaintiff to set forth the factual and
legal basis for his claim(s) for civil conspiracy to libel and/or slander plaintiff.4 See Memorandum
And Order And Order To Show Cause (Doc. #39) at 12. In his response, plaintiff sets forth a litany
of factual allegations regarding his experiences with a housing program for veterans that he alleges
defendant controls. See Plaintiff’s Response (Doc. #40) at 5-6. Even if the allegations sufficiently
set forth the factual basis for his claim, plaintiff provides no legal basis to support the claim.
Pursuant to 28 U.S.C. § 2680(h), the FTCA does not apply to certain intentional torts, including

4

In the pretrial order, plaintiff alleges that after committing medical malpractice,
“defendant under the pretense of assisting the Plaintiff with housing, then put into action a
conspiracy in the defendants’ facilities to libel and slander the Plaintiff in order to side-step any and
all liability for malpractice which caused Plaintiff’s permanent disability.” Pretrial Order (Doc. #31)
filed March 30, 2016 at 3.
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claims arising out of libel or slander.5 Because the United States has not waived sovereign immunity
with respect to such claims, the Court lacks subject matter jurisdiction over them. See Lipkin v.
S.E.C., 468 F. Supp.2d 614, 624 (S.D.N.Y. 2006). Accordingly, the Court dismisses plaintiff’s
claim(s) for civil conspiracy to libel and/or slander plaintiff.
IT IS THEREFORE ORDERED that plaintiff’s claim(s) for civil conspiracy to libel and/or
slander plaintiff be and hereby are DISMISSED for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that the Clerk is directed to enter judgment in favor of
defendant on plaintiff’s claim(s) for medical malpractice.
IT IS FURTHER ORDERED that the trial set for February 27, 2017 is CANCELLED.
Dated this 16th day of February, 2017 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

5

Under Section 2680(h), the FTCA does not apply to

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights: Provided, That, with regard to acts or omissions of
investigative or law enforcement officers of the United States Government, the
provisions of this chapter and section 1346(b) of this title shall apply to any claim
arising, on or after the date of the enactment of this proviso, out of assault, battery,
false imprisonment, false arrest, abuse of process, or malicious prosecution. For the
purpose of this subsection, “investigative or law enforcement officer” means any
officer of the United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.
28 U.S.C. § 2680(h).
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