McManamon v. The Department of Veteran's Affairs et al

Filing 30

MEMORANDUM AND ORDER: For the reasons set forth above, the Government 's motion to dismiss 20 is granted and this action is dismissed. The Clerk of Court is directed to enter Judgment accordingly and close the case. The Court certifies pursuan t to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to send McManamon a copy of this Memorandum and Order along with the accompanying Judgment, note the mailing on the docket, and close the case. Ordered by Judge Roslynn R. Mauskopf on 6/19/2017. (Taronji, Robert)

UN ITED STATES DISTRICT COU RT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------x
TI IO MAS MCMANAMON,
Plaintiff,

MEMORANDUM AND ORDER
15-CV-352 (RRM) (JO)

-againstUN ITED STA TES OF AMERICA,
Defendant.

--------------------------------------------------------------x
ROSL YNN R. MAUSKOPF, United States District Judge.

Prose plaintiff Thomas McManamon fi led this action on October 20, 20 14 all eging
defamation of character based on fa lse information provided in medical records at the Brookl yn
VA hospital. (Com pl. (Doc. No. I).) On December 16. 20 15 defendant United States of
J\meri ca (the "Government") moved to dismiss thi s action pursuant to Federal Rules or Civil
Procedure ('·Rules'') 12(b)(l), 12(b)(5), and 12(b)(6). (Mot. to Dism iss (Doc. No. 20).) On
October 28, 20 16, McManamon filed an opposition. (See Def.' s 10/28/16 Ltr. (Doc. No. 27).)
for the reasons that fo ll ow, the Government's motion to dismiss is granted.

BACKGROUND
McManamon alleges that medical records held by the Brooklyn VA hospital show that
"as per I011911999 .. . I was arrested and charged 16 times. This [is] false information .... I
was never arrested 16 times and charged prior to thi s. Dr. Ferer' s note as per 1011 911996, states I
was arrested and charged 16 times. False info. Dr. Bennet Cohen recorded these erroneous
records as fact. " (Compl. at 3.) 1 McManamon attaches a medical di scharge summary printed
Oc tober 2, 20 14. (Comp I. Ex. ("Discharge Summary") (Doc. No. 1-1 ).) The document includes

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/\II citat ions to pages of the Complaint refer to the Electronic Coun Filing System ("EC F'") pagination.

a secti on ca lled "LEGAL HISTORY" that states in part:
As per Dr. Ferer's note of2/ 14/14:
According to 8/2/20 13 documentation, [McManamonJ has filed two lawsu its:
One against YC Correction Department for being dism issed, and one against
VA for ' not fai rl y treated, di scriminating' that is reported as being ongoing.
The patient was arrested and convicted for battery and domestic violence in
Seminole County, Florida in either 1995 or 1996. As per 10/19/J 999
documentation, the patient has been arrested and charged 16 times, spent four
months in jail. The patient self-reports 4 incidents of having taki ng [sic]
mugshots (reported to be in Florida), 2 are reported as being related to DWI
(7/2/20 13 documentation). He believes that he was ' entrapped.'
(Id at 1.) There is a hand written circle around the above information with a notati on stating,

.. I·ALSE INFO," that appears to have been made by McManamon. (Id.)
McManamon alleges that as a result of the fo regoing he has experienced "stress, anxiety
and depression along with nightmares." (Compl. at 3.) He seeks one mi llion dollars for pain and
suffering and a correcti on of the alleged erroneous info rmation in hi s medical records. (Comp I.
at 4. )
STAN DARD OF REVIEW

Rul e I 2(b)( 1) all ows a defendant to bring a motion to di smiss for ·' Jack of subject-matter
j urisdiction." Fed. R. Civ. P. 12(b)(l). Plaintiffs carry the burden to affirmatively establish the
ex istence of subject-matter jurisdiction by a preponderance of the evidence. Morrison v. Na/'/
Australia Bank Ltd , 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 56 1 U.S . 247 (20 10) (q uoting
Makarova v. United Stales, 20 1 F.3d 110, 113 (2d Cir. 2000)). In determining whether a court

has subject matter jurisdiction, "the court may consider relevant documents that are ex trinsic to
the compl aint." N. Y.S. Catholic f-feaflh Plan, Inc. v. A cad 0 & P Assoc., 32 1 F.R.D. 278, 294
(E. D. . Y. 20 15) (citing Phifer v. City ofNe w York, 289 F.3d 49. 55 (2d Cir. 2002)) ... After
construing all ambiguiti es and drawing all inferences in a plain ti rr s favo r. a di strict court may
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properl y dismiss a case for lack of subj ect matter jurisdiction under Rule 12(b)( I) if it Jacks the
statutory or constitutional power to adjudicate it." Aurecchione v. Schoolman Transp. Sys., Inc.,
426 F.3d 635, 638 (2d Cir. 2005) (internal citations and quotation marks omitted).
The Court is mindful that McManamon is proceeding prose. As such, hi s compl aint is
held to a less exacting standard than a complaint drafted by an attorney. See Haines v. Kerner,
404 U.S. 519, 520- 21 ( 1972); Boykin v. KeyCorp, 521F.3d202, 2 14 (2d Cir. 2008). Because
prose litigants ··are entitled to a liberal construction of their pleadings,'' the Court reads

McManamon 's complaint to .. raise the strongest arguments that [it] suggest[s]." Green v. Uniled
Stales, 260 F.3d 78, 83 (2d Cir. 200 I) (internal citations omitted). Nonetheless, the Court .. need

not argue a prose litigant 's case nor create a case for the pro se which does not exist. " Molina

v.

Ne ll' York, 956 F. Supp. 257, 260 (E.D.N. Y. 1995).

DISCUSSION
"The basic rule of federa l sovereign immunity is that the United States cannot be sued at
all without the consent of Congress." Block v. North Dakota, 461 U.S . 273, 287 ( 1983). For
fede ral subject matter jurisdiction to ex ist in an action against the Government. the Government muse
.. unequivoca lly express[] in statutory text" its wa iver of immunity. Lane v. Pena, 518 U.S. 187, 192
( 1996). Such waivers will be strictly construed in favor of the Government. Id. (co llecting cases).
In the absence of an applicab le waiver, th is Court lacks jurisd iction over such claims. See id.
Because the doctrine of sovereign immunity is jurisdictional in nature, the burden rests on
McMa namon to demonstrate that the Government has waived soverei gn immunity with respect to his
claims. See Makarova

v.

United States, 20 I F.3d 110, 11 3 (2d Cir. 2000).

The FTCA, 28 U.S.C. §§ 267 1 et. seq., provides the excl usive remedy where, as here, a
plaintiff "seeks to recover for the negligent or wrongfu l acts or omissions of federa l employees
acting within the scope of their employment." Asta v. Mirandona, 372 F. Supp. 2d 702, 710
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(E. D.N. Y. 2005); see also Cas1ro v. Uniled States, 34 F.3d I 06, 11 0 (2d Cir. 1994) ('·[T]he
United States has not waived its sovereign immunity with respect to claims that its employees
have committed constitutional torts, and ... a claimant' s excl usive remedy for nonconstitutional
torts by a government employee acting within the scope of his employment is a suit against the
government under the FTCA."). Specificall y, the FTCA allows for:
claims against the United States, for money damages, ... fo r injury or loss of
property, or personal injury .. . caused by the negli gent or wrongfu l act or
om ission of any employee of the Government while acting wi thin the scope of hi s
office or employment, under circumstances where the United States, if a private
person, would be liable to the clai mant.
28 U.S.C. § 1346(b)( l); see also Castro, 34 F.3d at 11 0. One exception to thi s waiver is a
provision expressly barring suits against the United States based on claims fo r certain intentional
torts, including, inter alia, libel and slander. 28 U.S.C. § 2680(h) ('The prov isions of . .. section
l 346(b) of thi s title shall not apply to . .. [a]ny claims ari sing out of ... libel, slander,
mi srepresentation, [or] deceit."); see also Astu, 372 F. Supp. 2d at 7 10. Because libel and
slander are both fo rms of defamation, courts have fo und that the intentional tort exception under
the FTCA also bars the more general claim of defamation. See. e.g., Spinale v. U.S. Dep 't of
Agric., 62 1 F. Supp. 2d 11 2, 118 (S.D.N.Y. 2009) (dismissing plaintiff s defamation claim

against a Government agency because "the United States, and its agencies, have not waived
sovereign immuni ty for intenti onal tort claims under the FTCA"); Aslo, 372 F. Supp. 2d at 710
(li nding that the co urt lacked subject matter juri sdiction over a defamation cla im again st the
Go vernment brought pursuant to the fTC A because the Government had not waived its
sovereign immunity).
Here, McManamon brings hi s claims pursuant to the FTCA, allegi ng .. defamation of
charac ter. " (Compl. at 2.) Because, as discussed above, such claims are barred by the FTCA ·s

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intentional tort exception, this Court lacks jurisdicti on over McManamon 's claims.
Accordingly, McManamon's complaint is dismissed for lack of subj ect matter
jurisdiction. The Court finds that leave to amend would be futile, and thus, leave to amend is
deni ed. See Tylicki v. Schwartz, 40 1 F. App ·x 603, 604 (2d Cir. 20 10) (summary order) (leave
to amend need not be granted where amendment would be futi le).
CONCLUSION

For the reasons set fort h above, the Government ' s motion to dismiss is granted and this
action is dismissed. The Clerk of Court is directed to enter Judgment acco rdingly and close the
case.
The Court certifies pursuant to 28 U.S. C. § 1915(a)(3) that any appeal from thi s Order
would not be taken in good fa ith and therefore in forma pauperis status is denied fo r purpose of
an appeal. Coppedge v. United Stales, 369 U.S. 438, 444-45 ( 1962).
The Clerk of Court is directed to send McM anamon a copy of thi s Memorandum and
Order along with the accompanying Judgment, note the mailing on the docket, and close the case

SO ORDERED.
Dated : Brooklyn, New York
~ t7
, 20 17

s/Roslynn R. Mauskopf
ROSL YNN R. MA US KOPF
United States District Judge

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