Hackworth v. Kansas City Veterans Administration Medical Center et al
Filing
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ORDER granting 56 motion to dismiss for lack of jurisdiction; granting 56 Motion to Dismiss for Failure to State a Claim. Plaintiff granted leave in order to file Second Amended Complaint within thirty (30) days, should he choose to do so. Signed on 11/26/2014 by District Judge M. Douglas Harpool. Copy of Order mailed to Plaintiff. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JEFFERY D. HACKWORTH,
Plaintiff,
vs.
KANSAS CITY VETERANS
ADMINISTRATION MEDICAL CENTER,
et al.
Defendants.
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Case No. 6:13-cv-03363-MDH
ORDER
Before the Court is Defendants’ Motion to Dismiss (Doc. 56). Defendants argue that
Plaintiff’s Amended Complaint (Doc. 23) should be dismissed for lack of subject matter
jurisdiction and failure to state a claim. The Court, after careful consideration, GRANTS
Defendants’ motion (Doc. 56). In light of Plaintiff’s pro se status, the Court affords Plaintiff
leave to amend his complaint within thirty (30) days, should he choose to do so, in order to
address the deficiencies of his Amended Complaint.
BACKGROUND
On November 1, 2013, the Court granted Plaintiff Jeffery D. Hackworth leave to proceed
with the present case in forma pauperis and Plaintiff filed his complaint. On April 23, 2014, the
Court issued an order responding to numerous pre-service motions filed by Plaintiff. Within its
order, the Court denied Plaintiff’s request for a public defender, granted Plaintiff’s request for
service via United States marshal, granted Plaintiff leave to file an amended complaint, and
dismissed Plaintiff’s other motions without prejudice until Plaintiff obtained proper service upon
Defendants.
Plaintiff filed an amended complaint and subsequently obtained service upon
Defendants in September of 2014. Prior to Defendants’ answer, Plaintiff filed various other
motions. In response to the amended complaint, Defendants filed a motion to dismiss.
Plaintiff’s Amended Complaint attempts to state a claim against the following
defendants: Kansas City Veterans Administration Medical Center (“KCVAMC”); Kent D. Hill,
Director; Kevin Q. Inkley, Assistant Director; James E. Sanders, Chief of Staff; Michael C.
Moore, PhD, Assistant Director; John/Jane Does 1-100 of KCVAMC in their official capacity
and individual capacity; Department of the Treasury; Jacob J. Lew, Secretary of the Treasury;
Neal Wolin, Deputy Secretary of the Treasury; Mark A. Patterson, Chief of Staff to Secretary of
the Treasury; and Jane/Jane Does 1-100 of the Department of the Treasury, in their official
capacity and individual capacity.
The Amended Complaint alleges that the above-named Defendants “unlawfully seized
funds” from Plaintiff on two separate occasions “without due process.” Pl.’s Am. Compl. 1.
Plaintiff alleges that Defendants KCVAMC and the Department of Treasury “conspired and
violated constitutional law by unlawfully seizing funds” and that Defendant employees of
KCVAMC and the Department of Treasury “failed to uphold their oath of office (5 USC [sic] §
3331) by refusing due process in court of law according to U.S. constitutional law.” Pl.’s Am.
Compl. 1-2. Plaintiff requests relief under 42 U.S.C. § 1983 in an amount exceeding two billion
dollars and “demands the removal of any credit report concerning this complaint.” Pl.’s Am.
Compl. 2.
ANALYSIS
Defendants argue that the Court should dismiss Plaintiff’s Amended Complaint because
the Court lacks subject matter jurisdiction and because Plaintiff failed to state a claim upon
which relief can be granted. In order to survive Defendants’ Motion to Dismiss, Plaintiff’s
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Amended Complaint must show that the Court has subject matter jurisdiction, that sovereign
immunity does not bar his claim, and present sufficient factual matter to create a reasonable
inference that Defendants are liable for the misconduct alleged.
The Court agrees with
Defendants and dismisses Plaintiff’s Amended Complaint.
I. Subject Matter Jurisdiction
Because jurisdiction is a threshold issue, the Court must first consider Defendant’s
argument that the Court lacks subject matter jurisdiction. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95 (1998) (“The requirement that jurisdiction be established as a
threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’
and is ‘inflexible and without exception.’”).
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is jurisdictional
in nature and, as a prerequisite to suing the federal government or its agencies, a plaintiff must
show that the government has consented to suit. See United States v. Mitchell, 463 U.S. 206, 212
(1983) (“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.”). The government’s waiver of sovereign
immunity must be “unequivocally expressed” and “strictly construed, in terms of its scope, in
favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996).
Here, the Amended Complaint does not include a jurisdictional statement as required by
Rule 8(a) of the Federal Rules of Civil Procedure. Moreover, Plaintiff failed to allege when and
how the federal government waived its sovereign immunity over Plaintiff’s claims. 1 While
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The Court rejects Plaintiff’s argument that sovereign immunity is unconstitutional. Doc. 57.
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Plaintiff cited 42 U.S.C. § 1983, which the Court liberally construes to assert a Bivens claim, 2
such actions do not apply to or waive the sovereign immunity of federal agencies or federal
officials acting in their official capacity. Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998)
(noting a suit against a government official in his official capacity is treated as a suit against the
agency and noting Bivens actions “cannot be prosecuted against the United States and its
agencies because of sovereign immunity.”). Accordingly, Plaintiff failed to establish the Court’s
subject matter jurisdiction over the claims presented against various federal agencies and
officials acting in their official capacity. 3
Therefore, claims as to those Defendants are
dismissed. 4
II. Failure to State a Claim
“To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content
“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”
Id.
The plaintiff must plead facts that show more than a mere speculation or
possibility that the defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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A Bivens claim is a cause of action brought directly under the United States Constitution against a federal official
acting in his or her individual capacity for violations of constitutionally protected rights. See Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). “An action under Bivens is almost identical to
an action under section 1983, except that the former is maintained against federal officials while the latter is against
state officials.” Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990). Here, Plaintiff sued federal officials and
not state officials; therefore, a claim under section 1983 would be inappropriate.
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Considering Plaintiff’s “Declaration and demand for clarification” (Doc. 29), the Court rejects Defendant’s
argument that Plaintiff was ambiguous as to the capacity in which he intended to sue the government officials.
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The Court notes that there are various waivers of the federal government’s sovereign immunity; however, none
appear to apply to the case as pleaded. Plaintiff brings a civil claim against federal agencies alleging violations of
due process and seeking monetary damages. Under the FTCA, constitutional tort claims are not cognizable.
F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). The APA waives sovereign immunity for certain actions against the
government but only for claims “seeking relief other that money damages.” 5 U.S.C. § 702. Additionally, Plaintiff
brings a monetary claim for more than $10,000 and jurisdiction over “Big Tucker” claims is vested in the Court of
Federal Claims. See 28 U.S.C. § 1491.
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555 (2007). While the Court accepts the complaint’s factual allegations as true, it is not required
to accept the plaintiff’s legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
While “pro se complaints are to be construed liberally,” the Court “will not supply additional
facts, nor will [it] construct a legal theory for plaintiff that assumes facts that have not been
pleaded.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004), quoting Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989).
Plaintiff’s Amended Complaint fails to state a claim upon which relief can be granted.
The factual allegations contained in the Amended Complaint state only that Defendants
“unlawfully seized funds” on two separate occasions. Plaintiff does not otherwise detail the
circumstances of the seizure or allege how Defendants acted unlawfully and in violation of due
process.
While the Court accepts Plaintiff’s factual allegations as true, it cannot accept
Plaintiff’s mere conclusory statements and/or legal conclusions. The allegations within the
Amended Complaint show only that Defendants seized funds from Plaintiff on two separate
dates. These facts alone do not allow the Court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. As stated above, the
Court cannot “supply additional facts” or “construct a legal theory for plaintiff that assumes facts
that have not been pleaded.” Stone, 364 F.3d at 914.
A court considering a motion to dismiss under 12(b)(6) can review not only the complaint
itself but also “some materials that are part of the public record or do not contradict the
complaint,” including “items appearing in the record of the case.” See Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (considering record created as a result
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of Plaintiff’s various motions for temporary restraining order, preliminary injunction, and
expedited discovery).
Here, Plaintiff’s various filings and attachments thereto include supplemental factual
allegations. For example, Plaintiff alleges that Defendants seized funds from Plaintiff’s Social
Security Disability benefits under the authority of 31 U.S.C. § 3716. Doc. 20. The exhibits
attached to Plaintiff’s filings show that Plaintiff’s direct deposit of social security benefits was
“offset” by the Department of Treasury in the amount of $119.58 on September 3, 2013 (Doc.
20), $76.48 on April 3, 2014 (Doc. 21), and $41.36 on October 3, 2014 (Doc. 53). A letter from
the Department of Treasury submitted by Plaintiff indicates that the Department offset Plaintiff’s
benefits in order to pay Plaintiff’s purportedly delinquent debt to KCVAMC. Doc. 20. Other
documents attached as exhibits to Plaintiff’s various filings show that Plaintiff sent a letter to
KCVAMC on January 5, 2013, disputing certain charges in his statement; that Plaintiff received
two letters from the Department of Treasury, dated July 3, 2013 and August 27, 2013, warning
Plaintiff that his federal benefits may be reduced because of a delinquent agency debt; and that
Plaintiff received two response letters from the Department of Treasury dated August 6, 2013
and August 27, 2013, indicating that the Department of Veterans Affairs certified Plaintiff’s debt
and informing Plaintiff to contact KCVAMC to dispute the debt. Doc. 20.
Accepting the foregoing supplemental facts as true, the Court remains unable to conclude
that Plaintiff’s Amended Complaint states a plausible claim for relief. First, under Bivens, a
plaintiff must show that the defendant violated a federal constitutional right of the plaintiff that
was clearly established at the time of the challenged conduct. Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012). Plaintiff failed to do so. Plaintiff claims that Defendants “unlawfully seized
funds . . . without due process”; however, the facts derived from Plaintiff’s exhibits indicate that
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Defendants “seized” Plaintiff’s social security benefits after notice, and under the authority of a
federal statute, in order to pay an outstanding debt to a federal agency.
31 U.S.C. §
3716(3)(A)(i) (“Notwithstanding any other provision of law . . . except as provided in clause (ii),
all payments due to an individual under – (I) the Social Security Act . . . shall be subject to offset
under this section.”). Plaintiff does not allege how this seizure violated his due process rights.
See, e.g., Creason v. City of Washington, 435 F.3d 820, 824 (8th Cir. 2006).
Moreover, Plaintiff’s allegations that the agencies conspired to violate constitutional law
and that the officials failed to uphold their oaths of office are unsupported. Instead, the facts
show that Defendants used the authority of a federal statute to seize Plaintiff’s funds. Plaintiff
does not allege that Defendants failed to comply with any certain provision of 31 U.S.C. § 3716.
Thus, even if Defendants did violate Plaintiff’s constitutional rights, they did not violate a right
that was “clearly established.” See Lockhart v. United States, 546 U.S. 142, 145, 126 S. Ct. 699,
701, 163 L. Ed. 2d 557 (2005); Harrison v. U.S. Soc. Sec. Admin., No. 3:13-CV-435, 2014 WL
29042, at *1 (E.D. Va. Jan. 2, 2014).
A government official’s conduct violates “clearly
established law” when “at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotations
omitted). In other words, “existing precedent must have placed the statutory or constitutional
question beyond debate.” Id.
Second, under Bivens, a plaintiff must show that the defendant was personally involved
in the alleged violation. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995) (“Defendants are liable for their personal acts only.”). For example, where a plaintiff
alleged that a government official was deliberately indifferent to his medical needs but the
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complaint failed to state that the defendant had any contact with plaintiff or any participation in
the decisions affecting his medical needs, the Eighth Circuit held the complaint was insufficient
to state a Bivens claim. Id. at 37-38. Here, Plaintiff alleges no facts that connect any of the
individual defendants with the seizure of his funds or the underlying disputed debt. 5 Because a
defendant can be liable only for his personal acts, Plaintiff fails to state a claim.
DECISION
Based on the foregoing analysis, Defendant’s Motion to Dismiss (Doc. 56) is
GRANTED. Due to Plaintiff’s pro se status, and because courts “freely give leave [to amend]
when justice so requires,” the Court will allow Plaintiff thirty days in which to file a Second
Amended Complaint, if he so chooses. 6 Fed. R. Civ. P. 15(a)(2). In drafting his Second
Amended Complaint, the Court refers Plaintiff to Federal Rules of Civil Procedure 8 and 10. If
Plaintiff chooses to file an amended complaint, it should address the deficiencies stated in this
Order, including but not limited to: the basis for the Court’s jurisdiction, the specific law(s)
under which the federal government waived sovereign immunity in this case, the factual
circumstances surrounding the alleged unlawful seizure of funds, how the seizure violated due
process, how the individual defendants were involved in the seizure, and all forms of relief
requested.
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Plaintiff presented insufficient factual allegations as to the unnamed defendants to even allow discovery. See
Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (“an action may proceed against a
party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party
to be ascertained after reasonable discovery.”).
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Providing Plaintiff an opportunity to amend his complaint is not necessarily futile. Plaintiff’s various motions
appear to seek non-monetary relief, as well, which may provide a separate basis for the government’s waiver of
sovereign immunity. Furthermore, Plaintiff may include facts unknown to the Court at this time which could affect
the Court’s ability to infer wrongdoing on the part of Defendants.
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Accordingly, the Court GRANTS Defendants’ Motion to Dismiss (Doc. 56) and
GRANTS PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT within
thirty (30) days of this Order.
IT IS SO ORDERED.
Dated: November 26, 2014
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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