Phillips v. Loiterstein et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Audrey G. Fleissig on February 3, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLINT PHILLIPS, III,

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Plaintiff,
v.
DR. DAVID LOITERSTEIN, et al.,
Defendants,

No. 4:16-CV-1236 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Response to the Court’s Order to show
cause why this action should not be dismissed. After careful review of the matter, the Court
finds that this action must be dismissed.
Standard of Review
Plaintiff is proceeding in forma pauperis. Under 28 U.S.C. § 1915(e), the Court is
required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to
state a claim upon which relief can be granted. To state a claim for relief, a complaint must
plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere
possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.

The Complaint
On August 14, 2012, police officers and fire personnel transported Plaintiff to the VA
Medical Center, Jefferson Barracks Division, for a mental health examination. Plaintiff was
placed on a 96-hour hold for observation, and he was forcibly medicated.

He says that

Defendant Dr. David Loiterstein issued an Ex Parte Certificate of Insanity against him, which
made “him automatically liable for false imprisonment via his reckless disregard for the truth and
his obstinate refusal to seek such.” He denies having exhibited any symptoms of psychiatric
illness. However, he does say that he needed “emergency psychiatric medicine because [he] was
running low on pills, and [his] psychiatrist had cancelled [his] appointment at last minute notice
so [he] was unable to get a refill.”
Plaintiff sues both Dr. Loiterstein and the United States. He sues Dr. Loiterstein under
Bivens, and he sues the United States under the False Torts Claim Act, 28 U.S.C. §§ 2671-80
(“FTCA”).
Discussion
On initial review, the Court found that Plaintiff’s allegations against Dr. Loiterstein were
barred by sovereign immunity because he sued Defendant in his official capacity. The Court
further found that it lacked jurisdiction over his FTCA claim because there was no indication he
exhausted his administrative remedies with the VA. As a result, the Court ordered Plaintiff to
show cause why the case should not be dismissed.
In his Response, Plaintiff says, “I am suing Dr. David Loiterstein in his individual
capacity under ‘Bivens’ and the U.S. under the Title 28 Section 2680(h) exemption to sovereign
immunity.”

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Plaintiff’s Response is inadequate to demonstrate that this action should not be dismissed.
Plaintiff cannot add an individual capacity claim against Dr. Loiterstein without filing an
amended complaint. The Federal Rules do not allow for supplemental pleadings. See Fed. R.
Civ. P. 7(a). Moreover, Plaintiff’s allegations against Dr. Loiterstein are entirely conclusory, and
therefore, fail to state a claim upon which relief can be granted. Iqbal, 556 U.S. at 678.
Finally, Plaintiff has misinterpreted the exceptions to tort liability under § 2680. Section
2680 describes situations in which the United States cannot be held liable under the FTCA. In
particular, § 2680 prohibits suits under the FTCA for “claim[s] arising out of assault, battery,
false imprisonment, [and] false arrest . . .” As a result, Plaintiff has not shown that the Court has
jurisdiction over his FTCA claim.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 3rd day of February, 2017.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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