Rodriguez v. United States of America et al

Filing 31

Opinion and Order signed by Judge James S. Gwin on 7/14/15 denying plaintiff's motion for leave to file an amended complaint. (Related Docs. 14 , 22 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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VICTORIO C. RODRIGUEZ,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA, ET AL., :
:
Defendants,
:
:
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CASE NO. 1:14-CV-02526

OPINION & ORDER
[Resolving Docs. 14, 22]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case arising out of Plaintiff’s alleged mistreatment at the Cleveland Veterans Affairs
(“VA”) Medical Center, Plaintiff Victorio Rodriguez has moved to file an amended complaint
adding claims for spoliation.1/ For the reasons below, the Court DENIES Plaintiff’s motion.
I. Background
On November 17, 2014, Plaintiff Victorio Rodriguez sued Defendants United States of
America, Charles Moore, and Murray Altose.2/ The complaint alleged that Plaintiff suffered a heart
attack as a result of the United States’s negligence in the care and treatment of Plaintiff’s ischemic
heart disease, and that Defendants Moore and Altose violated Plaintiff’s rights under the Due Process
clause of the Fifth Amendment.3/

1/

Doc. 22. Defendants oppose. Doc. 25. Plaintiff has filed a reply. Doc. 27. Defendants have filed an “objection”
to Plaintiff’s reply brief. Doc. 28. While they do not move to strike Plaintiff’s reply brief, Defendants argue that the Court
should not consider it because it impermissibly supplements Plaintiff’s opposition to two pending motions to dismiss.
Defendants’ objection is noted. The Court will consider Plaintiff’s reply brief only to the extent it addresses issues that
are relevant to the motion to file an amended complaint.
2/
Doc. 1; Doc. 1-1 at 1–2.
3/

Doc. 1; Doc. 1-1 at 2–3.

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Case No. 1:14-CV-02526
Gwin, J.
On May 28, 2015, Plaintiff Rodriguez moved to amend his complaint to add two new claims
and two new parties to this lawsuit.4/ Both claims sound in spoliation. First, Plaintiff claims VA
Medical Center Director Susan Fuehrer either spoliated Plaintiff’s electronic medical records or
relied on spoliated medical records when investigating Plaintiff’s complaints about his treatment at
the VA Medical Center.5/ Second, Plaintiff claims Assistant United States Attorney (“AUSA”) David
Ruiz—counsel for Defendants in this case—either spoliated Plaintiff’s electronic compensation
records or relied on spoliated electronic compensation records when drafting a brief in support of
Defendants Altose and Moore’s motion to dismiss.6/
II. Legal Standards
Under Federal Rule of Civil Procedure 15(a)(2), a party may amend its pleading with leave
of the Court, which “should freely give leave when justice so requires.”7/ However, leave to amend
may be denied where the amendment would be futile because “the proposed amendment would not
survive a motion to dismiss.”8/
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”9/ The plausibility requirement is not
“akin to a probability requirement,” but requires “more than a sheer possibility that the defendant

4/

Doc. 22. The motion was timely under the Court’s Case Management Order, which required any motions to
amend pleadings to be filed by May 29, 2015. See Doc. 19 at 1. Nevertheless, the Court’s permission is required for
a party to amend its pleadings when, as here, more than twenty-one days have passed since Defendants served their first
responsive pleadings. See Fed. R. Civ. P. 15(a).
5/
Doc. 22 at 1 (citing Doc. 14 at 2).
6/

Id. (citing Doc. 14 at 2–3).

7/

Fed. R. Civ. P. 15(a)(2).

8/

SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 355 (6th Cir. 2014) (citing Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) and Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d
505, 512 (6th Cir. 2010)).
9/

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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Case No. 1:14-CV-02526
Gwin, J.
has acted unlawfully.”10/ Federal Rule of Civil Procedure 8 provides the general standard of pleading
and only requires that a complaint “contain . . . a short and plain statement of the claim showing that
the pleader is entitled to relief.”11/
Plaintiff Rodriguez is representing himself in this case. “A document filed pro se is ‘to be
liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’”12/ However, a pro se complaint must
still meet Rule 8’s minimum requirement of a “short and plain statement” showing entitlement to
relief.
III. Analysis
Plaintiff Rodriguez’s motion to amend incorporates by reference Plaintiff’s earlier-filed
“declaration,” which actually describes the substance of Plaintiff’s allegations.13/ Because the Court
treats pro se filings liberally, both documents will be considered as one joint motion to amend the
complaint. But even with a generous reading, Plaintiff’s proposed amendments would be futile.
A. The FTCA Bars These Claims
With certain exceptions that are not applicable, the Federal Tort Claims Act (“FTCA”) is the
exclusive vehicle a plaintiff may use to recover damages for a tort committed by a federal agent or
employee.14/ Among other things, the FTCA requires that the plaintiff name the United States as a

10/

Id.

11/

Fed. R. Civ. P. 8(a)(2).

12/

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).
13/

Doc. 22 (calling this motion a “follow up” to Doc. 14).

14/

28 U.S.C. § 2679(b).

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Case No. 1:14-CV-02526
Gwin, J.
defendant rather than the individual employee,15/ and the FTCA requires the plaintiff make a pre-suit
administrative claim with the appropriate agency.16/
Here, both proposed parties to be joined are individual federal employees: Fuehrer is the
Director of the Cleveland VA Medical Center and Ruiz is an AUSA. Further, Plaintiff Rodriguez
has not made an administrative claim for the alleged spoliation. Thus Plaintiff’s amendments would
be futile as his proposed claims are barred by the FTCA.
B. The Spoliation Claims Do Not Meet the Plausibility Standard
Even if Plaintiff had complied with the requirements of the FTCA, he still fails to state a
plausible claim for spoliation. Under Ohio law, spoliation claims have five elements: first, that at
the time of the alleged spoliation there was pending or probable litigation involving the plaintiff;
second, that the defendant knew litigation existed or was probable; third, that the defendant willfully
destroyed evidence for the purpose of disrupting the plaintiff’s case; fourth, that the plaintiff’s case
was disrupted; and fifth, that damages were proximately caused by the defendant’s acts.17/ Plaintiff
Rodriguez needs to establish all five of these elements to prevail. But Plaintiff has not alleged any
facts that inferentially support his spoliation claims, and thus it would be futile to allow the proposed
amendment..
1. Claim Against Susan Fuehrer
In 2014, Director Fuehrer investigated complaints Plaintiff Rodriguez made about his
treatment at the VA Medical Center.18/ Fuehrer’s report of her investigation concluded that

15/

28 U.S.C. § 2679(d)(1).

16/

28 U.S.C. § § 2401(b), 2675(a).

17/

See Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993).

18/

Doc. 1-34.

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Case No. 1:14-CV-02526
Gwin, J.
Plaintiff’s complaints were “unsubstantiated.”19/ Although his motion is unclear, Plaintiff Rodriguez
alleges either that Fuehrer relied on electronic medical records that had been falsified to reach this
conclusion,20/ or that she intentionally falsified Plaintiff’s medical records herself during the
investigation.21/
The former interpretation (reliance on falsified documents) does not itself constitute
spoliation, as Fuehrer would not have destroyed evidence herself. And if Plaintiff is asserting the
latter interpretation—that Fuehrer herself destroyed evidence—he has done so by merely offering
a conclusory allegation that is contradicted by the Plaintiff’s own pleadings. In fact, Plaintiff
Rodriguez attached his medical records to his initial complaint.22/ As Plaintiff is currently in
possession of his medical records—which he admits are true and accurate copies23/—he cannot
simultaneously claim that Fuehrer falsified those same records.
At best, Plaintiff appears to be disagreeing with the conclusions in Director Fuehrer’s report.
While Plaintiff may dispute what the medical records show, the existence of such a dispute does not
in itself raise a plausible inference of spoliation.
2. Claim Against David Ruiz
On March 24, 2015, AUSA Ruiz filed a memorandum in support of Defendants Altose and
Moore’s motion to dismiss, in which the Defendants argue that Plaintiff’s claims against them

19/

Id.

20/

Doc. 14 at 1 (“Susan Fuehrer[‘s]” report found that “all allegations were not substantiated by using the
Plaintiff’s electronic medical records that were spoliated.”).
21/

Doc. 22 at 1 (“[I]ntentional spoliation of Plaintiff’s medical and compensation records which were committed
by Susan M. Fueh[r]er.”).
22/

See Doc. 1-12; Doc. 1-22; Doc. 1-33.

23/

See Doc. 14 at 1.

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should have been brought in the Court of Veterans Appeals.24/

Again, although his motion is

unclear, Plaintiff Rodriguez alleges either that Ruiz relied on falsified compensation records in
writing the memorandum,25/ or that Ruiz falsified Plaintiff’s compensation records himself.26/
The former interpretation is not a cognizable legal claim for which relief may be granted.
If Plaintiff made this claim, there would be no allegation that Ruiz destroyed evidence. And the latter
interpretation of Plaintiff’s complaint once again merely asserts a vague conclusion without any
factual support. Plaintiff claims to be in possession of his unaltered electronic compensation records,
and claims that those records do not support Defendants’ arguments.27/ But Plaintiff Rodriguez
cannot simultaneously claim to be in possession of his compensation records and also assert that
Ruiz wilfully destroyed them. Furthermore, Plaintiff has had the opportunity to oppose Defendants
Altose and Moore’s motion to dismiss,28/ so any alleged misrepresentations cannot have been said
to have damaged Plaintiff or disrupted this case.
Again, while Plaintiff may disagree with AUSA Ruiz’s reading of the record, that does not
mean that Ruiz has committed spoliation.
IV. Conclusion
For the forgoing reasons, the Court DENIES Plaintiff’s Motion to File an Amended

24/

Doc. 5.

25/

Doc. 14 at 2 (“[Ruiz] is basing his opinion on the spoliated electronic compensation record of the Plaintiff.”).

26/

Doc. 22 at 1 (“[I]ntentional spoliation of Plaintiff’s medical and compensation records which were committed
by . . . David A. Ruiz.”).
27/

Doc. 14 at 3.

28/

See Doc. 9.

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Case No. 1:14-CV-02526
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Complaint.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 14, 2015

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