Diana v. Stackley et al

Filing 13

DECISION AND ORDER adopting Report and Recommendations re 7 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks Order and Report-Recommendation (Dkt. No. 7) is ADOPTED in its entirety; and the Court further ORDERS tha t Plaintiff's complaint is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/26/2017. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROSIE MARIE (FIORE) DIANA,
Vet. Salvatore Raymond Fiore (estate of); Sp. Patricia
DeLores (Fiore) Gaetano (estate of),
Plaintiff,
vs.

6:17-cv-0376
(MAD/TWD)

SEAN J. STACKLEY, et al.,
Defendants
____________________________________________
APPEARANCES:

OF COUNSEL:

ROSIE MARIE (FIORE) DIANA
9503 Aitken Avenue
Whitesboro, New York 13492
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
On April 5, 2017, pro se Plaintiff Rosie Marie (Fiore) Diana (“Plaintiff”) commenced this
action against Sean J. Stackley, in his capacity as Secretary of Navy; the Department of Veterans
Affairs (“VA”); the Veteran’s Administration Hospital of Syracuse (“VA Hospital”), New York;
Utica State Hospital; the City of Utica Civil Service Department; the City of Utica Fire
Department; the Oneida County Veterans Service Offices; the Oneida County Department of
Social Services; Delta Airlines Inc.; Pan American International Flight Academy (“Pan Am”); the
New York State Office of the Attorney General; the U.S. Navy (the “Navy”); and the Federal
Aviation Administration, also known as Bureau of Aeronautics (collectively “Defendants”). See
Dkt. No. 1 at 1-3.

Plaintiff alleges that she was entitled to helpless child benefits under the Veterans
Administration Act, Federal Tort Claims Act (“FTCA”) compensation for her father, mother, and
herself, and her father’s retroactive veterans benefits. Id. at ¶ 20. Additionally, Plaintiff alleges
that the Navy, the VA, and the VA Hospital are all liable under the FTCA, along with all other
defendants for failing to meet the duty of care owed to her family by refusing “to assist [her
father] in receiving benefits under the Veterans Administration.” Id. at ¶ 24.
In an Order and Report-Recommendation dated June 6, 2017, Magistrate Judge Therese
W. Dancks granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP") and
recommended a complete dismissal of her complaint without leave to amend. See Dkt. No. 7 at 2,
16. On July 21, 2017, Plaintiff filed objections to Magistrate Judge Dancks’ Order and ReportRecommendation. See Dkt. No. 11.
Presently before the Court are Magistrate Judge Dancks’ Order and ReportRecommendation and Plaintiff’s objections.
II. BACKGROUND
Plaintiff’s father, Salvatore Fiore (“Fiore”), served in the United States Navy during
World War II on Funafuti Atoll. See Dkt. No. 1 at ¶ 5. On July 31, 1944, a Pan Am flight
crashed while taking off, prompting quick action from the seamen stationed on the island. See id.
at ¶ 6. According to Plaintiff, the initial inquest into the crash was “covered up or botched.” Id.
The report was designated “confidential.” Id.
Fiore was discharged in 1947 and at some point married Plaintiff’s mother. Id. at ¶ 7. In
1948, he sought benefits and treatment for trauma that he believed was related to the accident, but
was denied. See id. at ¶ 9. A year later, Plaintiff was born. See id. at ¶ 7. According to
Plaintiff’s complaint, two days before she was born, her father was arrested for domestic abuse.
2

See id. at ¶ 8. Plaintiff believes that this abuse led to her being born with deformed vertebrae,
which she states has left her unable to work. See id. at ¶ 9.
Plaintiff’s complaint states that Fiore was diagnosed with schizophrenia in 1956. See id.
at ¶ 12. In 1958 and 1983, Fiore attempted to have his benefits modified to account for
disabilities he believed resulted from the 1944 crash. See id. at ¶ 13. The VA denied his claim.
See id. After his death, Plaintiff became the executor of his estate. See id. at ¶ 18.
In 2008, upon discovering that the Navy “botched” the initial report, Plaintiff “filed a
claim in the Court of Claims to obtain . . . Helpless Child Benefits and amend her father’s
record.” Id. at ¶ 14. In August 2009, the VA denied her claim. See id. at ¶ 15.
On May 11, 2010, Plaintiff brought her first complaint in federal court under 42 U.S.C. §
1983 against the Navy, the VA, the VA Hospital, and Utica State Hospital for improperly denying
her father’s benefits. Dkt. No. 7 at 9. On October 6, 2010, the Court dismissed Plaintiff’s
original claim with leave to amend on the grounds that § 511(a) of the Veteran’s Judicial Review
Act precludes judicial review of a determination by the Veteran’s Administration on a claim for
benefits. Id. at 10. Plaintiff filed an amended complaint on December 13, 2010, which included a
claim under the FTCA that the defendants breached the duty of care owed to her father for failing
to provide assistance in receiving benefits. Id. On February 8, 2011, District Judge David N.
Hurd sua sponte dismissed the complaint on the grounds that Plaintiff could not avoid the effect
of § 511(a) by dressing her benefits claim in the language of the FTCA. Id. at 11. On November
4, 2011, the Second Circuit held that the appeal lacked any basis in law or fact and dismissed the
appeal. Id. at 11.
Plaintiff commenced her second action in this district in 2015 against a litany of federal,
state, municipal, and private defendants. Id. at 11. The district court dismissed the claims as
3

outside of the court’s subject matter jurisdiction. Id. at 12-13. Again, the appeal was dismissed.
Id.
In 2016, Plaintiff initiated an administrative action against the Navy, which included an
FTCA claim. See id. at 7. On October 6, 2016, the Navy denied her FTCA claim on the grounds
that the claim had accrued more than two years prior to the date that she initiated the
administrative proceeding, barring her from relief under 29 U.S.C. § 2401(b). See id.
Plaintiff initiated this action on April 5, 2017. Dkt. No. 1 at 1. In her Order and ReportRecommendation, Magistrate Judge Dancks recommended that the Court dismiss the complaint
because the Court lacks subject matter jurisdiction. See Dkt. No. 7 at 15. Plaintiff lodged a
single specific objection that her discovery of the crash report in 2008 was not sufficient notice to
trigger FTCA claim accrual. See Dkt. No. 11 at 2-3.
III. DISCUSSION
A.

Standard of Review
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the

court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). In making this determination, "'the court has the
duty to show liberality towards pro se litigants,' however, 'there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis.'" Griffin v. Doe, 71 F. Supp. 3d 306, 311 (N.D.N.Y. 2014)
(quoting Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y. 1994)); see also Thomas v.
Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power
to dismiss a complaint sua sponte if the complaint is frivolous).
4

When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by applicable
requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not require
'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (other citations omitted).
A federal court has an independent duty to determine whether the court has subject matter
jurisdiction to adjudicate the complaint. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999). Where subject matter jurisdiction is lacking, dismissal is mandatory. See Arbaugh v. Y &
H Corp., 546 U.S. 500, 514 (2006). Therefore, although courts “construe a pro se plaintiff’s
complaint liberally, a plaintiff attempting to bring a case in federal court must still comply with
the relevant rules of procedural and substantive law, including establishing that the court has
subject matter jurisdiction over the action.” Ally v. Sukkar, 128 Fed. Appx. 194, 195 (2d Cir.
2005) (internal citation omitted).
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).

5

A pro se litigant's objections to a Report and Recommendation should be accorded
leniency so long as they are “specific and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument." DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (quotation
omitted); see also IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865, 2008
WL 4810043, *1 (S.D.N.Y. Nov. 3, 2008) ("To the extent . . . that the party makes only
conclusory or general arguments, or simply reiterates the original arguments, the Court will
review the Report strictly for clear error").
B.

The Order and Report-Recommendation
Here, Magistrate Judge Dancks recommended that the Court dismiss Plaintiff’s benefit

claims due to a lack of subject matter jurisdiction. Dkt. No. 7 at 15. Since Plaintiff did not
submit any objections asserting this Court’s jurisdiction for benefits claims, the Court has
reviewed the Order and Report-Recommendation for clear error and found none.
Magistrate Judge Dancks recommended that the Court dismiss Plaintiff’s FTCA claim on
the grounds that it was actually a benefits claim and thus the Court lacks subject matter
jurisdiction. Dkt. No. 7 at 15. Since Plaintiff did not submit any specific to this part of the
Recommendation-Report, the Court has reviewed the Report-Recommendation for clear error.
A benefits claim brought under the FTCA does not provide the Court jurisdiction. See
Brown v. United States, No. 10-CV-497A, 2011 WL 4439314, *1 (W.D.N.Y. Sept. 23, 2011)
(citing Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994)); Di Silvestro v. United States, 181 F.
Supp. 860, 861 (E.D.N.Y. 1960). In Brown, the plaintiff suffered harm as a result of his veterans
benefits being terminated in the midst of a dental procedure. See Brown, 2011 WL 4439314

6

at *1. The Brown court held that because the alleged tort was a change in benefits, the court
lacked jurisdiction to hear the complaint. See id.
Here, the heart of Plaintiff’s FTCA claim is that the VA repeatedly refused to recognize
that her father’s mental and physical ailments were tied to his service in the Pacific. See Dkt. No.
1 at ¶ 24. According to her complaint, this failure resulted in a domino effect causing all of the
other hardships Plaintiff and her family have endured. See id. at ¶ 9. Therefore, because the
tortious action is the denial of benefits, the FTCA cannot be used to give this court jurisdiction.
Finding no clear error in Magistrate Judge Dancks’ Order and Report-Recommendation, this
Court adopts its findings that the Court lacks subject matter jurisdiction to address the FTCA
claim.
Normally, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "'when a liberal reading of the complaint gives any
indication that a valid claim might be stated.'" Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir.
2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). However, where there is a
substantive defect that cannot be cured through a better pleading, the Court need not grant this
opportunity. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Since Plaintiff did not submit
any specific objections as to whether she should be afforded leave to amend, the Court has
reviewed the Report-Recommendation for clear error. Finding no clear error, and for the reasons
stated in Magistrate Judge Dancks’ Order and Report-Recommendation, leave to amend is denied.
C.

The Objection
Plaintiff’s objection notes that the initial discovery of the declassified documents was only

a “‘partial’ discovery.” See Dkt. No. 11 at 2. Under the more lenient standard afforded pro se
litigants, this can be interpreted as a specific objection relating to the tolling of the statute of
7

limitations and will be reviewed de novo. Plaintiff’s remaining objections are a general plea for
justice or are not legally material to her claims. See Dkt. No. 11 at 2-3.
Under the FTCA, a claim is forever barred after two years have accrued from when the
claim becomes ripe. See 29 U.S.C. § 2401(b). However, the FTCA time bar is not a
jurisdictional bar, but a statute of limitations defense. See United States v. Kwai Fun Wong, 135
S.Ct. 1625, 1634 (2015). As a dismissal under a statute of limitations is a judgment on the merits,
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995), the issue cannot be adjudicated when
there is no subject matter jurisdiction. See Ruhrgas AG, 526 U.S. at 583 (quoting Steel Co. v.
Citizens for Better Environment, 523 U.S. 83, 101-02 (1998)).
Here, the Court lacks subject matter jurisdiction, so it is unable to address the merits of the
case, including whether the complaint was timely. Thus, Plaintiff’s objection is not a relevant
objection to the Order and Report-Recommendation.
Having carefully reviewed Magistrate Judge Dancks' Order and Report-Recommendation,
Plaintiff's submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks’ Order and Report-Recommendation (Dkt. No.
7) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further

8

ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: October 26, 2017
Albany, New York

9