Mendoza v. Hontiveros et al
Filing
5
ORDER AND REASONS: ORDER granting 2 Motion to Dismiss for Lack of Jurisdiction and to Substitute the United States of America as the Sole Federal Defendant. IT IS FURTHER ORDERED that plaintiff's claims against Gina Hontiveros, R.N., There sa Cruthirds, Dr. Eleanor Daveron, Dr. Tanya D. Martin, Brandi Torres, R.N., and the United States Department of Veterans Affairs are DISMISSED. IT IS FURTHER ORDERED that the United States of America is substituted as the proper federal defendant. Signed by Judge Mary Ann Vial Lemmon on 12/14/2016. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES H. MENDOZA, SR.
CIVIL ACTION
VERSUS
NO.16-14790
GINA HONTIVEROS, R.N.,
THERESA CRUTHIRDS,
SECTION "S" (2)
DR. ELEANOR DAVERON,
DR. TANYA D. MARTIN,
BARNDI TORRES, R.M. AND
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS
ORDER AND REASONS
IT IS HEREBY ORDERED that the United States of America’s Motion to Dismiss
Parties for Lack of Subject Matter Jurisdiction and Motion to Substitute the United States of
America as the Sole Federal Defendant (Doc. #2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s claims against Gina Hontiveros, R.N.,
Theresa Cruthirds, Dr. Eleanor Daveron, Dr. Tanya D. Martin, Brandi Torres, R.N., and the United
States Department of Veterans Affairs are DISMISSED.
IT IS FURTHER ORDERED that the United States of America is substituted as the
proper federal defendant.
BACKGROUND
This matter is before the court on the United States of America’s motion to dismiss
plaintiff’s claims against defendants, Gina Hontiveros, R.N., Theresa Cruthirds, Dr. Eleanor
Daveron, Dr. Tanya D. Martin, Brandi Torres, R.N., and the United States Department of Veterans
Affairs, for lack of subject matter jurisdiction and to substitute the United States of America as the
sole and proper federal defendant.
Plaintiff, James H. Mendoza, Sr., filed this pro se1 complaint against defendants alleging
that they retaliated against him for filing a complaint about his treatment at a Department of
Veterans Affairs medical center. Specifically, Mendoza alleges that he filed a complaint with
Theresa Cruthids, a Patient Advocate, concerning Dr. Daveron and Nurse Torres claiming that
they gave Mendoza “false information concerning a medical report from the Pain Management
Clinic in New Orleans, Louisiana.” Within an hour of Mendoza’s filing the complaint, Dr. Martin,
who was not Mendoza’s doctor, stopped a prescription refill that was in progress. Mendoza alleges
that Drs. Daveron and Martin falsified his medical records in retaliation for his filing the original
complaint, which caused him mental and physical pain. Mendoza “demands that his medical
records be cleared of any false information” and seeks $350,000 for mental and physical distress.
The United States filed the instant motion to dismiss seeking to dismiss Mendoza’s claims
against the individual federal employees and United States Department of Veterans Affairs for
lack of subject matter jurisdiction, and to substitute the United States as the proper federal
defendant.
ANALYSIS
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671-80 provides a
limited waiver of sovereign immunity and grant of jurisdiction to the federal district courts for tort
claims made against the United States of America. The FTCA provides that a tort action must be
maintained against the United States of America, and bars suits against individual federal agencies.
1
Because plaintiff is proceeding pro se, the court must construe his pleadings liberally. Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995). However, “[t]he right of self-representation does not exempt a party from
compliance with relevant rules of procedural and substantive law. Birl v. Estelle, 660 F.2d 592, 593 (5th
Cir. 1981).
28 U.S.C. §§ 1346(b) and 2671-80. Further, as to claims against individual federal employees, 28
U.S.C. § 2679(d)(1) provides:
[u]pon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any civil
action or proceeding commenced upon such claim in a United States
district court shall be deemed an action against the United States
under the provisions of this title and all reference thereto, and the
United States shall be substituted as the party defendant.
Pursuant to 28 C.F.R. § 15.4(a), the United States Attorney for the district where the civil action
is brought is authorized to make the statutory certification under 28 U.S.C. § 2679(d)(1) “that the
Federal employee was acting within the scope of his office or employment with the Federal
Government at the time of the incident out of which the suit arose.”
The United States filed a certificate executed by Kenneth Allen Polite, Jr., United States
Attorney for the Eastern District of Louisiana, pursuant to 28 U.S.C. § 2679(d)(1) and 28 C.F.R.
§ 15.4, in which he certifies that after reading the complaint, he finds that the individual defendants
were acting within the scope of their federal employment within the United States Department of
Veterans Affairs at the time of the conduct alleged in the complaint. Thus, the United States of
America is the proper defendant, and its motion is GRANTED.
CONCLUSION
IT IS HEREBY ORDERED that the United States of America’s Motion to Dismiss
Parties for Lack of Subject Matter Jurisdiction and Motion to Substitute the United States of
America as the Sole Federal Defendant (Doc. #2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s claims against Gina Hontiveros, R.N.,
Theresa Cruthirds, Dr. Eleanor Daveron, Dr. Tanya D. Martin, Brandi Torres, R.N., and the United
States Department of Veterans Affairs are DISMISSED.
IT IS FURTHER ORDERED that the United States of America is substituted as the
proper federal defendant.
14th
New Orleans, Louisiana, this _____ day of December, 2016.
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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