Trueman v. United States of America et al
ORDER granting 41 Motion to Dismiss for Lack of Jurisdiction the tort claims; granting in part 49 Motion to Amend; denying 55 Motion for Hearing. The Plaintiff is directed to file his amended complaint on or before 4/4/2014. The United Stat es has thirty (30) days from plaintiff's service of the complaint to file an answer or appropriate motion. Plaintiff is DIRECTED to submit completed summonses for the individual defendants by 4/4/2014. The parties are reminded to read the order in its entirety for detailed information. Signed by Senior Judge James C. Fox on 3/17/2014. Copy sent to the plaintiff via US Mail. (Edwards, S.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
JEFFERY A. TRUEMAN,
UNITED STATES OF AMERICA, et al.
This matter is before the court on the Motion to Dismiss [DE-41] filed by the United States
(also, "the Government"), the Motion to Amend/Correct Amended Complaint [DE-49] filed by the
Plaintiff, and the "Request for Expedited Cushman-Due Process Hearing" [DE-55] filed by Plaintiff.
For the reasons stated more fully below, the Motion to Dismiss [DE-41] and Motion to Amend [DE49] are ALLOWED, and the Request for Hearing [DE-55] is DENIED.
I. PROCEDURAL HISTORY
On March 27, 2012, proceeding pro se, Plaintiff Jeffery Trueman ("Trueman" or "Plaintiff')
filed an application to proceed in forma pauperis [DE-l]. In an order filed on March 29,2012 [DE3], United States Magistrate Judge William A. Webb allowed Plaintiff's application and directed the
Clerk of Court to file the Complaint [DE-4]. On April17, 2012, Plaintiff filed a "Notice ofMotion
of Motion for Expedited Hearing to Restore the Plaintiff's Feres Doctrine Mandated (FDM) Pain
Management Program (PMP) and Successful Treatment Plan to its Previous Status Prior to the
Involvement of Defendant Physician Assistant Troyon" [DE-9].
In the Original Complaint, Plaintiff alleged he served in the United States Navy from 1982
until his honorable discharge in 1994. Compl. [DE-4]
1, 3. He receives medical care from the
Department of Veterans Affairs ("VA"). In 2006, during his treatment by the VA, he received a
recommendation for a "Pain Management Program" which included both acupuncture treatment and
daily prescribed pain medication. Compl.
3; 21. On February 28, 2012, Plaintiff met with
Defendant Sharon F. Troyon, his new primary care provider and a physician assistant with the VA.
Plaintiff alleges Troyon did not authorize acupuncture treatment, and instructed Plaintiff to wean off
his pain medication within a five-day period. Compl. ~~ 23-24. He alleged Troyon "has a dislike
in prescribing pain medication to Veterans" and that he has since been "abandoned" by the VA.
3. He asserted claims under the Federal Tort Claims Act ("FTCA") alleging, inter alia,
medical malpractice, and named the following as Defendants: "United States of America,
Department of Veterans Affairs (VA) Wilmington North Carolina Outpatient Clinic (WV AOPC),
and Physician Assistant Sharon F. Tryon and WVAOPC Practice Manager Charles E. Best, Jr."
On April 17, 2012, Plaintiff filed a "Notice of Motion & Motion for Expedited Hearing to
Restore the Plaintiff's Feres Doctrine Mandated (FDM) Pain Management Program (PMP) and
Successful Treatment Plan to its Previous Status Prior to the Involvement of Defendant Physician
Assistant Troyon" [DE-9]. Therein, Plaintiff requested an expedited hearing and sought declaratory
and injunctive relief. Specifically, he sought "a declaration that the medically unsound termination
of his 'Pain Management Program (PMP)' by Defendant [Troyon] was arbitrary, premature, and
medically ill-advised due to the totality of his ... "health history. Notice [DE-4] at p.2. He asked
the court to, inter alia, order Defendants to reinstate his previous Pain Management Program,
including prescriptions for pain medication. !d. He asserted that he would run out of his pain
medication, hydrocodone, on or before April 18, or 20, 2012, and that his cessation of taking
hydrocodone would "present real danger to his abstinence from alcohol" and would aggravate his
various mental and physical health issues. Notice [DE-4] at p. 4.
In an Order filed on April 24, 2012, the court construed the Notice [DE-4] to be both a
motion for a temporary restraining order and a motion for preliminary injunction. The court denied
Plaintiffs request for a temporary restraining order and/or preliminary injunction, finding that
Plaintiff had failed to meet his burden of proof. Specifically, the court noted that it may grant a
temporary restraining order or a preliminary injunction only if the moving party demonstrates that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest," Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 20 (2008), and that Plaintiffhad not
established these requirements. See April24, 2012 Order [DE-12].
On May 8, 2012, Plaintiff filed a Motion to Amend Original Complaint [DE-16]. Defendant
the United States filed a response [DE-17] to the Motion to Amend, wherein the United States took
no position on the filing of an Amended Complaint, but objected to Plaintiffs suggestion that the
court rule on whether any claims asserted in the unseen Amended Complaint "relate back" to other
claims or toll prior claims asserted by Plaintiff under the FTCA. Defendant also filed a Motion for
Extension of Time to File Responsive Pleadings [DE-18] seeking sixty days to file a response to the
Original Complaint, or if the court allowed Plaintiff to file an Amended Complaint, sixty days to file
a responsive pleading to the Amended Complaint.
Around this same time, on May 17, 2012, Plaintiff apparently filed an administrative tort
claim under the FTCA, alleging medical malpractice by the VA beginning in February 2012, and
claiming that his benefits had been wrongfully denied since 1994. See FTCA Claim [DE-42-1]. His
claim was denied by a letter from the VA mailed on August 14, 2012. See August 14, 2012 Letter
Thereafter, on December 14,2012, Plaintiff filed the Petition for Preliminary Injunction [DE26], wherein the Plaintiff asked the court to, inter alia, compel the Department of Veterans Affairs
"to fee base all the [Plaintiffs] medical care for civilian outpatient treatment in the interest of
justice." Petition for Preliminary Injunction [DE-26] p. 10. Defendant the United States opposed
the motion for a variety of reasons [DE-27].
In an Order filed on January 22, 2013 [DE-29], the undersigned allowed Plaintiffs Motion
to Amend the Complaint [DE-16], noting that Plaintiff did not need court approval to file an
amended complaint as of right. The court specifically noted, however, that it was not ruling on
issues relating to "relation back" or tolling of any claims. The court ordered that Plaintiff was to file
his amended complaint on or before February 11, 2013. The court also ordered that the Defendant
United States was to file a responsive pleading within sixty (60) days ofFebruary 11,2013, or when
Plaintiff filed the Amended Complaint, whichever was earlier.
Plaintiff filed the Amended Complaint on February 8, 2013 [DE-30]. Plaintiff specifically
titled the Amended Complaint as follows:
First Amended Complaint (AC) for Declaratory, Injunctive, and Damage Relief
under the Peres Doctrine Rule of Law (FD-ROL)-Incident to Military Service
(ITMS)-No-Fault/Non-Adversarial (NFNA)-Second Rationale (SR)(FD-ROLITMS-NFNA-SR) Holding of the Supreme Court of the United States of America
(SCOUS) on December 4, 1950 & the Difiance [sic] of Defendant Department of
Veterans Affairs (DVA) to Honor the SCOUS-FD-ROL-NFNA-SR Mandate
(FDM)(1950) Giving Rise to the Violations ofPlaintiffs Federal Due Process and
Property Rights Under the Laws ofDVA-Compensation & Pension (C&P) Statutory
System and for Other Purposes in the Interest of Substantial Justice Under the FDROL Exemption to the United States Constitution (U.S. Const.) (1789), Bill of
Rights (BORs)(1791 ), and Federal Tort Claims Act (FTCA (1946).
Amended Compl. [DE-30]. He named the following as Defendants:
12. Defendant United States of America (USA), and its subordinate agency, agents,
officials of the DVA-Washington, D.C., and the DVA-North Carolina led and
administered by Barack H. Obama II, current President of the United States and his
Secretary ofDVA Eric Shineski.
13. Defendant Peebles MD, Baton Rouge VAOPC, Baton Rouge, LA (VAOPCBRLA).
14. Defendant Psychiatrist Bobby Simpson, VAOPC-BRLA.
15. Defendant Psychiatrist Kay Young, DVA Medical Center, White City, OR.
16. Defendant Meena Gulati MD., DVA Medical Center, Atlanta, GA (VAMCALTGA).
17. Defendant Psychiatrist Hsu, VAMC-ALTGA-VAOPC East Point, GA.
18. Defendant Nurse Practitioner Wendy Thornton, DVAOPC Macon, GA.
19. Defendant VA Medical Center Fayetteville, NC (VAMC-FNC) Director
20. Defendant Nurse Practitioner Yee Simmons, VAMC-FNC.
21. Defendant Sharon F. Troyon, physician assistant and employee of Defendant
VA-Outpatient Clinic, Wilmington, NC (V AOPC-WNC).
22. Defendant Charles E. Best, Jr., DVA provider manager, VAOPC-WNC.
23. Defendant Warren V. Hsu MD., VAOPC-WNC.
24. Unknown Defendant VAMCFNC IRIS Manger [sic], VAMC-FNC.
25. Unknown DVA Patient Advocate Manger [sic], VAMC-FNC.
26. Unknown DVA Freedom of Information/Privacy Act (FOIA/P A) Officer,
27. Defendant Bharatkumar Thakkar, MD, VAMC-FNC.
28. Defendant VAMC Salem Virginia Fee Base Manager.
29. Defendant VA-Office on Inspector General (VAIG) Hotline, Washington, D>C.
30. Defendant Steve [Last Name Unknown (LNU)], Front Desk Cler, W-VAOPC.
31. Unknown Supervisor, VA Mid-Atlantic Health (VISN 6) 300 W. Morgan St.
Suite 700 Durham, NC 27701.
32. Defendant K. Pfanzelter, Manager, VA Benefits Administration (VBA) Regional
Office (V ARO), Winston-Salem, NC (VBA ?RO-WS).
Amended Compl. [DE-30]. The Amended Complaint alleged ten causes of action.
The same day Plaintiff filed the Amended Complaint, he also filed an "Acknowledgement
of Service" [DE-32], wherein he asserts that he
properly served Defendants USA, et al., the attached documents:
1. Plaintiffs First Amended Complaint & Certification dated February 7, 2013;
2. Motion to Correct Caption of Case and Plaintiffs home address;
3. Request for Waiver of Service under the provisions ofFed.R.Civ.P. 4(d) and selfaddressed stamped envelope for return of waiver ...
by mailing the aforementioned documents to the United States Attorney for the Eastern District of
On March 1, 2013, Defendant United States filed a Motion to Dismiss Amended Complaint
for Violation of Rule 8 or, in the Alternative, Motion for More Definite Statement Pursuant to Rule
12(e), and Motion to Stay Responsive Pleading Until After Entry oflntelligible Second Amended
Complaint [DE-33]. In the memorandum in support of the motion [DE-34], Assistant United States
Attorney Sharon Wilson stated she was appearing on behalf of the United States and entering a
limited appearance on behalf of all the individual Defendants for purposes of that motion. In
addition to explaining why the United States believed Plaintiff's Amended Complaint should be
dismissed for violation of Rule 8(a), Ms. Wilson also stated her views on what she perceived to be
various deficiencies with Plaintiff's case, but did not file a motion to dismiss on any of those bases.
In his Response [DE-35], Plaintiff opposed the United States' motion, but also stated that he was
voluntarily withdrawing claims against certain defendants. The United States promptly filed a Reply
[DE-36], which, inter alia, asked the court to enter an order confirming Plaintiff's voluntarily
dismissal of certain defendants and claims.
In an order filed on June 17, 2013, the court allowed the United States' motion [DE-33] in
part. Specifically, the court observed that Plaintiff's prolific use of acronyms made his Amended
Complaint a "veritable alphabet soup" that had rendered the pleading "indecipherable. June 17,
2013, Order [DE-37] p. 8. The court observed, however, that it was "mindful that outright
dismissals of pro se complaints is not favored where the defects in the complaint may be curable
through amendment," and accordingly, the court directed Plaintiff to file a second amended
complaint, with all words written in plain English, within 21 days. The court also stated:
Given that Plaintiff has the opportunity to file an amended pleading setting forth the
exact claims he alleges, the court declines to make any ruling on which claims and
defendants remain in this action after Plaintiff's statement that he 'withdraws' certain
party defendants.' Plaintiff is instead instructed to ensure that the amended
complaint he files reflects the claims he currently is pursuine in this action.
June 17,2012, Order [DE-27] pp. 8-9. The court also noted that it was not making any rulings as to
the many observations made by Ms. Wilson, given that no motion was filed with regard to the
Two days later, Assistant United States Attorney Joshua B. Royster filed a Notice of
Substitution of Counsel for Defendants [DE-38]. Plaintiff thereafter filed his Second Amended
Complaint [DE-39], entitled:
Plaintiffs Second Amended Complaint for Declaratory, Injunctive, and Damage
Reliefunder the Provisions of the United States (U.S.) Supreme Court's (SCOUS)
Feres Doctrine Rule of Law-Incident to U.S. Military Service Holding and Its NoFault-Non-Adversarial Second Rationale Mandate (Feres Doctrine Mandate)
Federal Question Challenges to Prevent the Executive Branch and Its Department of
Justice (DOJ) From Covering-Up Crimes Committed by the Department ofVeterans
Affairs (DVA) Against U.S. Veterans and Families in Direct Violations ofthe Feres
Doctrine Exemption to the First and Fifth Amendments to the U.S. Constitution (U.S.
Const.) and the Federal Tort Claims Act (FTCA) and for Other Public Trust Related
Purposes as Compiled Over the Past 20 ~ the Veteran Has Been Denied Equal
Justice Under the Laws of the DVA; As With Millions of Other U.S. Veterans
Similarly Situated Under the Obama-DVA
He now names as Defendants:
Defendant United States of America (USA), and its subordinate agency,
agents, officials of the DVA-Washington D.C., and the DVA-North Carolina (NC)
led and administered by Barack H. Obama, II, current President of the United States
and his Secretary ofDVA Eric Shineski.
Defendant VA Medical Center Fayetteville, NC Director Elizabeth Goolsby,
officially and in her individual capacity.
Defendant Sharon F. Troyon, DVA-Outpatient Clinic, Wilmington, NC,
officially and in her individual capacity.
Defendant Charles E. Best, Jr., DVA-Outpatient Clinic, Wilmington, NC,
officially and in his individual capacity.
Defendant Warren v. Hsu, MD., DVA-Outpatient Clinic, Wilmington, NC,
officially and in his individual capacity.
18. Defendant Bharatkumar Thakkar, MD., VA Medical Center Fayetteville, NC.
Defendant K. Pfanzelter, Manager, VA Benefits Administration (VBA)
Regional Office (RO) Winston-Salem, NC.
Defendant Sharon C. Wilson, Assistant U.S. Attorney for the Southern
District of North Carolina.
Second Amend. Compl. [DE-39]. He asserts seven causes of action, 1 and asks for 28-enumerated
requests for relief.
Thereafter, the United States filed a "Certification of Scope ofEmployment and Substitution"
[DE-40], pursuant to the Westfall Act, 28 U.S.C. § 2679(d). Therein, R. A. Renfer, J.R.,Chief of
the Civil Division, United States Attorney's Office, Eastern District ofNorth Carolina, certifies that
"the individual defendants Sharon F. Troyon, Charles E. Best, Warren V. Hsu, M.D., and
Baratkumar Thakka, M.D. were acting within the scope of their employment as employees of the VA
at the time of the incidents alleged in the Complaint." Id. p. 1. Mr. Renfer also certifies that
"Assistant United States Attorney Sharon Wilson was acting within the scope of her employment
as an employee of the United States Department of Justice at the time of the events alleged in the
Second Amended Complaint." !d. p. 2. The Certification also states:
This certification also is notice that this suit is deemed an action against the United
States under the provisions of the Federal Tort Claims Act and the United States shall
be substituted as the party defendant in lieu of the above defendants, making the
United States of America the only defendant as to Plaintiffs tort claims.
!d. p. 2.
The United States also filed a Motion to Dismiss, wherein it argued that Plaintiffs tort claims
against the United States must be dismissed pursuant to Rule 12(b)(l) for lack of subject matter
The causes of action are denominated as follows:
(1) The Feres Doctrine Mandate Federal Question; (2) Defendant Department of Justice (DOJ) Defamaning
(sic) the Veteran's Character & Lack of Candor Toward the Tribunal; (3) Judicial Declaration that Plaintiff
Suffer no Pre-Military Medical Condition; (4) Equitable Tolling; (5) The Troyon-Incident and Medical
Malpractice, Neglect, Abandonment & OVA High Official Unlawful Reprisal, and (6) North Carolina State
Law Medical Malpractice & Intentional Infliction of Emotional Distress.
jurisdiction. The United States specifically noted, however, that Plaintiff states in his Second
Amended Complaint that he also is suing the individual defendants in their individual capacities
pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971). The United States asserts that Plaintiffhas not served any ofthe individual defendants, and
also notes that the court has not conducted a frivolity review of the Second Amended Complaint.
The Government states that the motion to dismiss is not intended in any way to be a response on
behalf of the individual defendants. See Mem. in Supp. of Mot. to Dismiss [DE-42] p. 1 n.l.
Plaintiff filed a brief in opposition [DE-44] to the United States' Motion to Dismiss wherein
he, inter alia, challenges the United States' "Westfall Certification," asserts that this court must
certify to the appropriate attorney general, pursuant to 28 U.S.C. § 2403, that "a statute has been
questioned," and requests that the court appoint him counsel.
Shortly thereafter, Plaintiff filed a Motion for Temporary Restraining Order [DE-4 7], wherein
he asserted that on September 4, 2013, he was approached by a Special Agent with the Department
of Veterans Affairs, who allegedly informed Plaintiff that he "committed fraud by filing for
'Improved Pension' in 2005 and that an 'indictment' was coming [Plaintiffs] way because [he]
play[s] baseball once or twice a week." Mot. for TRO [DE-47] p. 2. Plaintiff asked the court to
"issue a restraining order preventing Defendant Obama and his DOJ and DVA from bringing a
malicious prosecution against me while this case is pending before the Court." !d. p. 6. The court
denied Plaintiffs Motion in an order filed on September 17,2013 [DE-48], explaining that the court
was without authority to award the relief requested by Plaintiff.
Plaintiff then filed a "Motion for Rule 15 of the Court to Modify the Second Amended
Complaint to Re-Enjoin Defendant Department of Veterans' Affairs Inspector General (DV A-IG)
to Incorporate an Additional Claim for First Amendment Retaliation Arising from the September
4, 2013, DVA-IG Agent Kirby Serious Act oflntimidation, Harassment, and Threat of Malicious
Prosecution Further Giving Rise to Additional Deasy-Post Traumatic Stress Disorder (PTSD) &
Truman-Intentional Infliction of Emotional Distress Claims" [DE-49]. Plaintiff did not submit a
proposed amended pleading with his motion. Plaintifflater filed, on January 15,2014, a "Notice of
Additional Newly Discovered Evidence of First Amendment Reprisal in Further Support ofll Case
of First Impression-Federal Question Challenges and Requests for Damage Relief under the Feres
Doctrine-Rule ofLaw-Second-Rationale Philosophy & Request for Expedited Cushman-Due Process
Hearing" [DE-55]. It appears from the motion that Plaintiff has received notice that the VA may
terminate his improved pension financial benefits, and he believes this is further support for a First
Amendment reprisal claim. He also requests a "Cushman-Due Process Hearing." 2 [DE-55] p. 1.
II. CERTIFICATION AND SUBSTITUTION
When a plaintiff asserts claims against federal employees, the Westfall Act empowers the
Attorney General of the United States to certify that a defendant employee was acting within the
scope of his or her employment at the time of the incident giving raise to the claim, and the district
court shall deem the action as one against the United States, rather than the individual federal
employee. 28 U.S.C. § 2679(d)(l); see also Guiterrez de Martinez v. Lamagna, 515 U.S. 417,41920 (1995). The United States Attorneys are authorized to issue these certifications on behalf of the
Attorney General. Guiterrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1152 (4th
Cir.1997). Upon certification by the Attorney General or a United States Attorney, the United States
Plaintiff is presumably referring to Cushman v. Shineski, 576 F.3d 1290 (Fed. Cir. 2009).
is substituted as the party defendant and the individual employees are dismissed from the action. 28
U.S.C. § 2679(d)(l); Lamagna, 515 U.S. at 420, 115 S.Ct. at 2229. Once the United States is
substituted as the proper party, the relevant claims are then governed by the Federal Torts Claims
Act. See 28 U.S.C. § 2679(b)(l); Lamagna, 515 U.S. at 420.
Unless challenged by a plaintiff, the Government's certification is conclusive evidence that
the employee was acting within the scope of his or her employment at the time of the alleged
wrongful acts or incidents. Guiterrez de Martinez, 111 F.3d at 1153. When a plaintiff challenges the
certification, the certification constitutes prima facie evidence, and the burden shifts "to the plaintiff
to prove, by a preponderance of the evidence, that the defendant federal employee was acting outside
the scope of his employment." !d. To satisfy this burden, a plaintiff must come forward with either
"specific evidence or the forecast of specific evidence that contradicts the Attorney General's
certification decision ... ."Guiterrez de Martinez, 111 F.3d at 1155. Mere conclusory allegations
and speculation will not satisfy a plaintiffs burden. Guiterrez de Martinez, 111 F.3d at 1155.
Where a plaintiff comes forward with sufficient evidence to satisfy his or her burden of proof,
the burden shifts back to the Government, and the United States may come forward with evidence
supporting its certification. Guiterrez de Martinez, 111 F.3d at 1155. Thereafter,
the district court may allow (in its discretion) limited discovery or conduct an
evidentiary hearing, but should not do so if the certification, the pleadings, the
affidavits, and any supporting documentary evidence do not reveal an issue of
material fact. It is for the district court to assess the sufficiency of the evidence as
produced by the plaintiffs. Only if the district court concludes that there is a genuine
issue of material fact as to the scope-of-employment issue should the federal
employee be burdened with discovery and an evidentiary hearing.
!d. This is because "immunity under the Westfall Act, like other forms of absolute and qualified
immunity, 'is an immunity from suit rather than a mere defense to liability.'" !d. at 1154 (emphasis
in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). State law governs the inquiry
of whether an individual is acting within the scope of their employment. See Jamison v. Wiley, 14
F.3d 222, 237 (4th Cir. 1994) ("Whether an employee's action falls within the scope of his
employment under the Westfall Act is to be determined according to the rules of respondeat superior
of the state in which the wrongful conduct occurred.").
Here, as discussed, the Government has submitted the certification that Sharon F. Troyon,
Charles E. Best, Warren V. Hsu, M.D., Baratkumar Thakka, M.D., and Sharon Wilson3 were all
acting within the scope of their employment at the time of the incidents alleged in the Complaint.
The issue, therefore, is whether Plaintiff has satisfied his burden of coming forward with evidence,
or a forecast of specific evidence, that any of these defendants were not act within the scope of their
employment at the time of the incidents giving rise to his tort claims. The court finds that he has not.
Plaintiff asserts that these Defendants "have engaged in criminal falsification of official
documents or conspiracy to obstruct justice ... that is far outside the scope of public employment."
Pl.'s Opp. to Mot. to Dismiss [DE-44] p. 25. Other than his generalized assertions, however, the only
specifics mentioned by Plaintiff are Sharon Wilson's alleged false statements in previous filings in
this court, which he contends he has set forth in the second cause of action in the Second Amended
Complaint. See id. Consequently, because Plaintiff has not come forward with evidence, or a
specific forecast of evidence, that contradicts the certification as to defendants Sharon F. Troyon,
Charles E. Best, Warren V. Hsu, M.D., and Baratkumar Thakka, M.D., the United States'
substitution as to those defendants in Plaintiffs tort claims is proper.
The Government did not submit a certification as to Elizabeth Goolsby or K. Pfanzelter, both who
appear to be named as individual defendants. See Second Amended Compl. [DE-39] p. 26.
With regard to Sharon Wilson, even if the court could find that Plaintiffhas made a "specific
forecast of evidence" that Wilson made false statements in previous filings, Plaintiff still has not met
his burden in showing that Wilson was not acting within the scope of her employment when she
made the statements. Under North Carolina law, "[t]o be within the scope of employment, an
employee, at the time of the incident, must be acting in furtherance of the principal's business and
for the purposes of accomplishing the duties of his employment." Troxler v. Charter Mandala Ctr.,
89 N.C. App. 268, 271, 365 S.E.2d 665, 668 (1988). Although North Carolina courts have rarely
found intentional torts to be within the scope of employment, "rarely does not mean never." White
v. Cons. Planning, Inc., 166 N.C. App. 283, 296, 603 S.E.2d 147, 157 (2004). "The scope of
employment inquiry has been phrased as whether the employee was 'about his master's business or
whether he stepped aside from his employment to commit a wrong prompted by a spirit of
vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his
own,"' or alternatively, whether an employee "'departed, however briefly, from his duties in order
to accomplish a purpose of his own, which purpose was not incidental to the work he was employed
to do."' Whedbee v. United States, 352 F. Supp. 2d 618, 625 (M.D.N.C. 2005) (quoting Medlin v.
Bass, 327 N.C. 587, 593,340 S.E.2d 116, 121-22 (1986) and Wegner v. Delly-Land Delicatessan,
270 N.C. 62, 66, 153 S.E.2d 804, 808 (1967)). The allegedly false statements made by Wilson are
all found within the United States' Response in Opposition to Plaintiffs Motion for Preliminary
Injunction [DE-27]. The court cannot discern, and the Plaintiff offers no explanation, how the
statements-if they are in fact false-constitute a departure from Wilson's duties to accomplish a
purpose of her own, "which purpose was not incidental to the work [she] was employed to do."
Wegner, 270 N.C. at 66, 153 S.E.3d at 808. Indeed, if all of Plaintiffs assertions are to be believed,
Wilson was acting in accordance with what he believes to be the Department of Justice's aims. See
Second Amend. Compl. [DE-39]
33, p. 43 ("In the wake of the DOJ-Wilson falsifications the
Veteran truly believes that the Obama-DOJ has engaged in psychological operations against him
with the intent to see him loose [sic] control .... "). Consequently, the court finds that Wilson was
acting within the scope of her employment when she made the allegedly false statements in the brief
filed with this court.
Accordingly, the court finds that the United States is properly substituted as the defendant
with regard to Plaintiff's tort claims against Sharon F. Troyon, Charles E. Best, Warren V. Hsu,
M.D., Baratkumar Thakka, M.D., and Sharon Wilson, and that these claims are governed by the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. 4
III. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
The court now turns to the United States' assertion that Plaintiff's tort claims must be
dismissed for lack of subject matter jurisdiction.
Standard of Review
The existence of subject matter jurisdiction is a threshold issue which must be addressed
before the court can reach the merits of the case. See Steel Co. v. Citizens for a Better Env 't, 523
U.S. 83, 95-102 (1998); accord Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.
1999). It is a fundamental rule that a court has "jurisdiction to determine [its] jurisdiction."
Greenwich Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23,27
(2d Cir. 201 0). Subject matter jurisdiction is both a constitutional and statutory requirement which
Accordingly, Plaintiff's claims for defamation, intentional infliction of emotional distress, medical
malpractice, neglect, abandonment, negligent infliction of emotional distress asserted against those
defendants are now deemed to be against the United States.
restricts federal judicial power to a limited set of cases and controversies. Thus, "no action of the
parties can confer subject-matter jurisdiction upon a federal court." Ins. Corp. of Jr. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982). A defendant may challenge subject matter
jurisdiction pursuant to Rule 12(b)(l) facially or factually. See Wollman v. Geren, 603 F. Supp. 2d
879, 882 (E.D. Va. 2009). If the government presents a facial challenge by arguing the complaint
fails to allege facts upon which subject matter jurisdiction can be based, all facts alleged in the
complaint are presumed true. See Adams v. Bain, 697 F .2d 1213, 1219 (4th Cir. 1982). Alternatively,
if the government presents a factual challenge by arguing that jurisdictional facts alleged in the
complaint are untrue, the court may consider extrinsic information beyond the complaint to
determine whether subject matter jurisdiction exists. See Kerns v. United States, 585 F.3d 187,
192-93 (4th Cir. 2009). In both situations, the burden rests with the party seeking federal jurisdiction
to prove that federal jurisdiction is proper. See Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). Indeed, because the tort claims are governed by
the FTCA, it is Plaintiffs burden "to prove an unequivocal waiver of sovereign immunity and the
existence of subject matter jurisdiction." LeRose v. United States, 285 F. App'x 93, 96 (4th Cir.
When a defendant challenges subject matter jurisdiction, "the district court is to regard the
pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment." !d. (citations omitted).
A district court should grant a Rule 12(b)( 1) motion to dismiss "only if the material jurisdictional
facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond,
945 F .2d at 768 (citation omitted); see Evans v. B.F. Perkins Co., 166 F .3d 642, 64 7 (4th Cir. 1999).
It is well established that the United States, as sovereign, is immune from suit unless it
consents to be sued. Gould v. United States Dep 't of Health and Human Servs., 905 F .2d 73 8, 741
(4th Cir. 1990). "[T]he terms of its consent to be sued in any court define that court's jurisdiction
to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). "Sovereign immunity
is jurisdictional in nature." F.D.IC. v. Meyer, 510 U.S. 471, 475 (1994). Accordingly, when
sovereign immunity prevents a plaintiff from recovering, a court lacks subject matter jurisdiction to
hear the plaintiffs claims. !d.
The FTCA acts a limited waiver of sovereign immunity, but it "permits suit only on terms
and conditions strictly proscribed by Congress." Gould, 905 F .2d at 741. One of those conditions
is the exhaustion of administrative remedies. The FTCA specifically provides:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss ... caused by negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his or her office or
employment, unless the claimant shall have first presented the claim to the
appropriate federal agency and his claim shall have been finally denied by the agency
in writing and sent by certified or registered mail. The failure of an agency to make
final disposition of a claim within six months after it is filed shall, at the option of
the claimant at any time thereafter, be deemed a final denial of the claim for purposes
of this section.
28 U.S.C. § 2675(a). The administrative claim must be presented to the appropriate federal agency
within two years of the incident giving rise to the claim, and any subsequent court action must be
commenced within six months after the date the agency mails the notice of final denial. See 28
U.S.C. § 2401(b). "[T]he requirement of filing an administrative claim is jurisdictional and may not
be waived." Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986).
In this case, the record shows that Plaintiff filed this action asserting claims under the FTCA
on March 27, 2012, and later submitted an administrative claim on May 17, 2012. See
Administrative Claim [DE-42-1]. Thus, he did not exhaust his administrative remedy prior to
initiating this action. Plaintiff nevertheless argues that the filing of the First Amended Complaint
after he was issued the VA's notice of final decision satisfies the FTCA's exhaustion requirements.
The court does not agree. The majority of courts to have addressed the issue have concluded that "as
a general rule, a premature 'complaint cannot be cured through amendment, but instead, plaintiff
must file a new suit." Duplan v. Harper, 188 F.3d 1195, 1199 (1Oth Cir. 1999)(quoting Sparrow v.
USPS, 825 F. Supp. 252, 254-55 (E.D. Cal. 1993)); see also Hoffenberg v. Provost, 154 F. App'x
307, 311 (3d Cir. 2005) (determining that "the date of the amended complaint cannot serve as the
date the federal suit was 'instituted'" under the FTCA); Toomey v. United States, Civil Action No.
5:10-CV-260, 2012 WL 876801, at *3 (E.D. Ky. March 14, 2012); Boege v. Gallagher, No. CIV.
10-00565, 2011 WL 2746324, at *1 (D. Haw. July 11, 2011) ("Insofar as the exhaustion of
administrative remedies under the FTCA is a jurisdictional requirement, a plaintiff cannot cure the
premature filing of an FTCA complaint simply by filing an amended complaint); Edwards v. District
of Columbia, 616 F. Supp. 2d 112, 117 (D.D.C. 2009) (concluding that district court "lack[ed]
subject matter jurisdiction over Plaintiffs FTCA claims, which were filed before the exhaustion
requirement under section 2675(a) was satisfied, and this jurisdictional defect cannot be cured by
the filing of an amended complaint"). This is because "[a]llowing claimants generally to bring suit
under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect
by filing an amended complaint would render the exhaustion requirement meaningless and impose
an unnecessary burden on the judicial system." Duplan, 188 F.3d at 1199. This court agrees with the
reasoning of these courts, and concludes that Plaintiffs filing of the First Amended Complaint does
not satisfy the FTCA's exhaustion requirement. 5
Because Plaintiff failed to exhaust his administrative remedies prior to the institution of this
action, his tort claims under the FTCA against the United States are DISMISSED for lack of subject
IV. REMAINING CLAIMS AND MOTIONS
The Government's Motion to Dismiss does not address any other claims purportedly asserted
by Plaintiff, but suggests that the court conduct a frivolity review of the Second Amended
Complaint. The court declines to undertake another frivolity review at this juncture. The court
nevertheless observes that upon review of the Second Amended Complaint, it appears that Plaintiff
is attempting to assert the following additional claims, or requests for relief:
Plaintiff seeks a "judicial determination" stating either (1) that the doctrine announced in
Feres v. United States, 340 U.S. 135 (1950)6 is unconstitutional or (2) that it constitutes a
mandate to the VA. If the latter, Plaintiff seeks a determination that the VA has violated this
mandate with regard to his various claims for benefits. See Second Amended Compl. [DE39] p. 31.
He also seeks a "judicial declaration" that he suffered no pre-existing medical condition prior
to joining the United States Navy on July 12, 1982, and that "[t]herefore, each and every of
The court notes that Plaintiff asserts that this court "approved" the First Amended Complaint. It
did not. Plaintiff moved to amend his complaint; in the order allowing that motion, the court observed that
Plaintiff still had the right to amend his pleading once as a matter of course pursuant to Federal Rule
15(a)(l). In other words, Plaintiff needed no leave from the court, at that juncture, to file an amended
complaint. Moreover, the court did not review any proposed amended complaint. See Toomey, 2012 WL
87680 I, at *4 (rejecting the plaintiffs arguments that the court's allowing of the plaintiffs unopposed
motion to amend the complaint constituted the institution of a new action for the purposes of the FTCA
because the court "at no time stated, implied, or was even asked to decide, that the Amended Complaint
should be treated as the institution of a new suit under the FTCA").
In Feres, the Supreme Court barred tort claims under the FTCA against the United States brought
by service members for injuries that "arise out of or are in the course of activity incident to service." 340 U.S.
at 146. One of the rationales given by the Supreme Court for its decision was the fact that service
members already receive veterans' benefits, and Congress could not have intended them to receive
a double recovery for their injuries. !d. at 144-45.
the [Plaintiffs] presently cited or disputed mental and physical claims in his VA-record
should be declared 'incident to military service' or 'service-connected." !d. pp. 33-34.
Plaintiff also requests that the court recognize the "Feres Doctrine Mandate" and find that
the VA "has violated the Plaintiffs constitutional property rights to a 100% serviceconnected rating in lieu of the wrongly and willfully manipulated 60% rating for improved
pension purposes." !d. p. 38.
He alleges that the VA's "obstruction of justice and undue wanton delays in timely
processing and fairly adjudicating [his] claims" has violated his constitutional property
rights. !d. p. 29.
Plaintiff also seeks, inter alia, an award regarding his claims dating back to January 14,
1994. !d. p. 41.
Plaintiff sues Defendant Troyon in her "individual capacity for misconduct and causing [him]
to suffer PTSD and irretrievable damage to his constitutional and property interests." !d. p.
Plaintiff alleges Defendant Goolsby "willingly engaged in negligent supervision, failure to
intervene and prevent aggravation ofPlaintiff s VA created acquired pyschological disorders
and associated VA-1151/FTCA claims in this litigation" !d. p. 46.
He appears to assert a claim against all individual "DV A defendants" under Bivens v. Six
Unknown Named Agents ofthe Fed. Bureau ofNarcotics, 403 U.S. 388 ( 1971 ), for violating
his Fifth Amendment rights. !d. p. 56.
He appears to challenge the constitutionality of 38 U.S.C. § 511.
Some of these claims appear to be asserted against the United States, at least in some form.
Although the court declines to conduct a frivolity review of all Plaintiffs remaining claims, the court
is still cognizant of its duty satisfy itself that it has jurisdiction. See Brickwood Contractors, Inc. v.
Datanet Eng'g, Inc., 369 F.3d 385, 390 (4th Cir. 2004). After undertaking this duty, the court
concludes that it is without jurisdiction to hear many of Plaintiffs remaining claims because they
are grounded in the theory that the United States, through the Department of Veterans Affairs and
various officials employed at DVA, has denied him benefits to which he is entitled.
"In cases involving benefits owed to veterans, Congress has created a scheme conferring
exclusive jurisdiction over claims affecting veterans' benefits to some courts, while denying all other
federal courts any jurisdiction over such claims." Veterans for Common Sense v. Shineski, 678 F.3d
1013, 1020 (9th Cir. 2012). Specifically, the Veterans' Judicial Review Act of 1988, Pub.L. No.
1000-687, div. A. 102 Stat. 4105 (1988) ("VJRA") "established a multi -tiered framework for the
adjudication of claims regarding veteran benefits." Beamon v. Brown, 125 F.3d 965, 967 (6th Cir.
1997). As the court for the Northern District of West Virginia explained:
The VJRA does provide a limited waiver of sovereign immunity for lawsuits seeking
review of VA benefit decisions. Subject to certain stated limitations, however, the
VJRA vests exclusive jurisdiction in the [Court of Appeals for Veterans Claims
("CAVC")] to review such decisions. See 38 U.S.C. 7252. Pursuant to [38 U.S.C.
§] 511(a), the Secretary ofVeterans Affairs is responsible for deciding all questions
of law concerning the provision of benefits to veterans, their dependents, or their
survivors. An appeal from the Secretary's decision lies with the Board ofVeterans'
Appeals ("BVA"). 38 U.S.C. § 7104(a); 38 C.FR. Section 20.10(a). The BVA
decision may be appealed by the claimant to the CAVC, pursuant to 38 U.S.C.
section 7252(a), and then under certain circumstances, to the United States for the
Federal Circuit, pursuant to 38 U.S.C. sections 7252(c), 7292.
Corson v. Secretary of Veterans Affairs, Civil Action No. 1:09CV49, 2010 WL 532382, at *8
(N.D. W.Va. Feb. 8, 2010). "The decisions of the Federal Circuit are final and only 'subject to
review by the Supreme Court upon certiorari."' Veterans for Common Sense, 678 F.3d at 1022.
Under this statutory scheme, most courts have concluded that the VJRA "precludes
jurisdiction over a claim if it requires the district court to review 'VA decisions that related to
benefits decisions,' Beamon, 125 F.3d at 971, including 'any decision made by the Secretary in the
course of making benefits determinations,' Broudy [v. Mather}, 460 F .3d [ 106,] 115 [(D.C. Cir.
2006)]." Veterans for Common Sense, 678 F.3d at 1025. Accordingly, "[n]umerous courts have
recognized that § 511 broadly divests courts of jurisdiction over constitutional claims related to
benefits even where those claims concern agency procedures and do not challenge specific VA
benefit determinations." /d. at 1031 (collecting cases). Some courts have determined, however, that
the VJRA does not divest district courts ofjurisdiction to hear facial constitutional challenges to acts
of Congress. See, e.g., Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501 (2d Cir. 1992)
("Although district courts continue to have 'jurisdiction to hear facial challenges of legislation
affecting veterans' benefits,' other constitutional and statutory claims must be pursued within the
appellate mill Congress established in the VJRA."). But see Veterans for Common Sense, 678 F.3d
at 1033 (questioning whether the courts which have concluded that facial challenges survive "have
thoroughly analyzed the efforts Congress undertook to broaden § 511 and the concurrent effort it
took to establish an exclusive review scheme for claims related to veterans' benefits). In those
jurisdictions, a plaintiff cannot evade§ 511(a) by cloaking a claim in constitutional terms; rather,
the courts must "examine the substance of the allegations, rather than the plaintiffs labels, to
determine their true nature." Weaver v. United States, 98 F.3d 518, 520 (lOth Cir. 1996). Where the
claims "are, in substance, nothing more than a challenge to the underlying benefits decision," the
district court lacks jurisdiction to hear them. /d.
As the court previously indicated, it has examined the Second Amended Complaint, which
consists of 72 pages, including many paragraphs therein that span multiple pages. The court finds
that it lacks jurisdiction to consider the following claims because they are, at bottom, challenging
the underlying benefits decisions made by the DVA:
Plaintiffs request for a "judicial determination" stating either ( 1) that the doctrine announced
in Feres v. United States, 340 U.S. 135 (1950f is unconstitutional or (2) that it constitutes
Even if the court did have jurisdiction over this claim, it could not declare a binding decision of
the Supreme Court to be unconstitutional.
a mandate to the DV A. If the latter, Plaintiff seeks a determination that the DVA has violated
this mandate with regard to his various claims for benefits. See Second Amended Compl.
[DE-39] p. 31.
His request for a ''judicial declaration" that he suffered no pre-existing medical condition
prior to joining the United States Navy on July 12, 1982, and that "[t]herefore, each and
every of the [Plaintiffs] presently cited or disputed mental and physical claims in his DVArecord should be declared' incident to military service' or' service-connected." !d. pp. 33-34.
His requests that the court recognize the "Feres Doctrine Mandate" and find that the DVA
"has violated the Plaintiffs constitutional property rights to a 100% service-connected rating
in lieu of the wrongly and willfully manipulated 60% rating for improved pension purposes."
!d. p. 38.
His claim that the DVA's "obstruction of justice and undue wanton delays in timely
processing and fairly adjudicating [his] claims" has violated his constitutional property
rights. !d. p. 29.
His request for an award regarding his claims dating back to January 14, 1994. !d. p. 41.
See Karmatzis v. Hamilton,_ F. App'x _ , 2014 WL 278488, at *2 (7th Cir. Jan. 27, 2014)
(affirming district court's dismissal of action where the district judge properly concluded that
plaintiffs due process arguments did not constitute a facial attack, but instead were challenging the
VA's conduct in his particular case); Bradley v. United States Veterans Admin., 106 F.3d 383 (1st
Cir. 1997) (per curiam) (affirming district court's dismissal of action challenging the DVA's decision
to reduce plaintiffs disability benefits and noting that a plaintiff cannot "circumvent [§ 511] by
asserting constitutional claims); Zuspann v. Brown, 60 F.3d 1156, 1159-60 (5th Cir. 1995)
(explaining that the pertinent issue is "whether the plaintiff is alleging a facial attack on the
constitutionality of an act of Congress or whether the plaintiff is challenging the VA's decision to
deny him benefits" and holding that the district court had no jurisdiction over veteran's action
against defendants in their official capacities for alleged violations of the Fifth Amendment);
Larrabee, 968 F .2d at 1501 (determining that the district court lacked jurisdiction to hear plaintiffs
claims that defendants violated veteran's due process rights in dispute over medical treatment).
Trueman also challenges the constitutionality of3 8 U.S. C. § 511. To the extentthat Trueman
is making a facial challenge to this statute, his claim survives at this juncture.
Plaintiff also seeks to amend his complaint again to assert a claim alleging that his First
Amendment rights were violated by an interaction with an Agent Kirby with Department ofVeterans
Affairs who allegedly informed Plaintiff that an indictment was "coming [his] way." He also
contends that this interaction constitutes intentional infliction of emotional distress. In his latest
filing, Plaintiff indicates that he has received notice that the VA may terminate his improved pension
financial benefits, which he believes is further support of his First Amendment reprisal claim.
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading
"shall be freely given when justice so requires." FED. R. Civ. P. 15(a). The Supreme Court, in
Foman v. Davis, 371 U.S. 178 (1962), set forth the general standard for district courts to consider
when making Rule 15(a) determinations:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claims on the
merits. In the absence of any apparent or declared reason such as undue delay, bad
faith, or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party for virtue of the allowance of the amendment, futility of the amendment, etc.,
the leave should, as the rules require, be "freely given."
!d. at 182 (quoting FED. R. CIV. P. 15(a)). Thus, in the Fourth Circuit, the law is well settled "that
leave to amend a pleading should be denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving party, or the amendment would
be futile." Edwards v. City ofGoldsboro, 178 F.3d 231,242 (4th Cir. 1999). The decision to deny
or grant leave to amend a pleading is within a district court's discretion; however a court may not
exercise its discretion in a way that undermines Rule 15. See Pittston Co. v. United States, 199 F.3d
694, 705 (4th Cir. 1999).
For the reasons already discussed, this court does not have jurisdiction over claims
challenging veterans benefits determinations, even if Plaintiff alleges that a constitutional right was
violated in the course of making the determination. See, e.g., Hicks v. Veterans Admin., 961 F.2d
1367, 1370 (8th Cir. 1992) (dismissing action where plaintiff's claim that retaliation in violation of
his First Amendment rights "was the cause of the reduction of his disability rating and benefits is
essentially a challenge to the reduction of benefits on a constitutional basis"). With regard to his
allegations about the potential criminal indictment, the court does not agree with the Government's
limited objection that "Plaintiff's 'naked assertions' of injury are devoid of 'further factual
enhancement.'" [DE-52] p. 4. That is not to say that Plaintiff's purported claims are not subject to
attack on some basis; they very well may be. But the court cannot say, at this juncture, that Plaintiff
has not provided sufficient factual detail.
Accordingly, Plaintiff's motion to amend [DE-49] is ALLOWED in part. Plaintiff is
DIRECTED to file his amended complaint on or before April4, 2014. Plaintiff is reminded that
this court has already ruled that the United States has been substituted as defendant with
to Plaintiff's tort claims
Sharon F. Troyon, Charles E. Best, Warren V. Hsu,
M.D., Baratkumar Thakka, M.D .. and Sharon Wilson, and those claims have been dismissed.
Plaintiff also is reminded that this court lacks jurisdiction to hear any
determination of his veterans benefits. Plaintiff also is DIRECTED ensure that his amended
plea dine complies with Rule 8(a) of the Federal Rules of Civil Procedure. 8 The Government has
thirty (30) days from Plaintiffs service of the Amended Complaint to file an Answer or an
appropriate motion. Any motion must thoroughly address the relief the Government seeks as it
applies to Plaintiffs claims.
Additionally, as the Government has noted, Plaintiff has failed to serve the individual
defendants in this action, although he has submitted a "waiver of service" to the United States
Attorney. The Government, however, cannot waive service as to the individual defendants for the
claims asserted against them in their individual capacity. Accordingly, when Plaintiff files the
amended complaint, he also is DIRECTED to submit completed summonses for the individual
defendants to the Clerk of Court, who will forward them to the United States Marshal for service.
As to the remaining motions and/or requests for relief, they are denied. First, Plaintiff, in the
course of his response to the Government's motion to dismiss, asserts that this court must certify this
case to the Attorney General pursuant to 28 U.S. C. § 2403. That statute provides, in pertinent part:
In any action, suit or proceeding in a court of the United States to which the United
States or any agency, officer, or employee thereof is not a party, wherein the
constitutionality of any Act of Congress affecting the public interest is drawn in
question, the court shall certify such fact to the Attorney General, and shall permit
the United States to intervene for presentation of evidence, if evidence is otherwise
admissible in the case, and for argument on the question of constitutionality....
§ 2403(a). The United States already is a party to this action, therefore certification under the statute
is unnecessary. Plaintiff also, in his latest document filed with the court, requests a hearing. His
The Second Amended Complaint spans 72 pages and consists of 56 "paragraphs." Many of the
"paragraphs" within the pleading span multiple pages. See, e.g., Second Amended Compl. [DE-39] ~~ 32,
33. The pleading begins with an "Introduction" that consists of24 pages. The document also is peppered
with 65 footnotes. The pleading, as a whole, is rambling and repetitive, and contains large sections of
discourse that do not appear to be pertinent to Plaintiff's claims for relief.
request [DE-55] is DENIED.
Finally, Plaintiff, in his response to the Motion to Dismiss, includes a request for
appointment of counsel, presumably pursuant to 28 U.S.C. § 1915(e)(1). Although§ 1915(e)(l)
authorizes the court to "request an attorney to represent any person unable to afford counsel," there
is no constitutional right to counsel in civil cases, and a court should exercise its discretion to
"request" counsel for pro se civil litigants "only in exceptional" circumstances. Cook v. Bounds, 518
F.2d 779,780 (4th Cir. 1975); see Whisenantv. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated
on other grounds by Mallard v. US. Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 ( 1989). The
existence of exceptional circumstances depends upon "the type and complexity of the case, and the
abilities ofthe individuals bringing it." Whisenant. 739 F.2d at 163 (quotation omitted). The court
finds that, considering the nature of the claims presented and plaintiffs demonstrated ability to
articulate his claims, the facts of this case do not present exceptional circumstances warranting the
appointment of counsel at this time. Accordingly, Plaintiffs request for counsel is DENIED.
For the foregoing reasons, the United States' Motion to Dismiss [DE-41] the tort claims
asserted against it is ALLOWED. Plaintiffs Motion to Amend [DE-49] is ALLOWED in part, and
Plaintiff is DIRECTED to file his amended complaint on or before April4, 2014. The United States
has thirty (30) days from Plaintiffs service of the Amended Complaint to file an Answer or an
appropriate motion. Plaintiff also is DIRECTED to submit completed summonses for the individual
defendants by April 4, 2014. Plaintiffs Request for Hearing [DE-55] is denied, as his request for
appointment of counsel and request that the court certify the case to the Attorney General. The Clerk
of Court is DIRECTED to continue the management ofthis case.
SO ORDERED. This i / day of March, 2014.
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