Rodriguez v. United States of America et al

Filing 32

Opinion and Order signed by Judge James S. Gwin on 7/15/15 granting the motion to dismiss of Defendants Altose and Moore. Plaintiff's claims against said defendants are dismissed. (Related Doc. 5 ) (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., :
:
Defendant.
:
:
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CASE NO. 1:14-CV-02526

OPINION & ORDER
[Resolving Doc. 5]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case, Plaintiff Victorio Rodriguez claims Defendants Murray Altose and Charles
Moore, who are employees of the Department of Veterans Affairs (“VA”), violated Plaintiff’s rights
under the Due Process Clause of the Fifth Amendment by depriving him of his vested property
interest in VA benefits.1/ Defendants Altose and Moore have moved to dismiss the claims against
them.2/ For the following reasons, the Court GRANTS the motion and DISMISSES the claims
against Defendants Altose and Moore.
I. Background
In 2007, Plaintiff Rodriguez began receiving treatment at the VA Medical Center in
Cleveland, Ohio, for various conditions.3/ In 2010, Plaintiff was determined to be ten percent
disabled due to his ischemic heart disease.4/ In 2011, Plaintiff appealed that decision, arguing that
he should have a higher disability rating, but that he was not given the proper tests to evaluate his

1/

Doc. 1 at 3.
Doc. 5. Plaintiff opposes. Doc. 9. Defendants have replied. Doc. 13.

2/
3/

Doc. 1 at 7–8.

4/

See Doc. 1-24.

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Case No. 1:14-CV-02526
Gwin, J.
condition.5/ Specifically, Plaintiff says that his primary care physician, Dr. Knappenberger, referred
Plaintiff for a heart MRI, but that some unknown radiologist “withheld” that order so that Plaintiff
never received the heart MRI.6/ With this suit, Plaintiff additionally alleges that the failure to perform
the proper tests in 2010 directly contributed to a heart attack he had in 2012.7/
Plaintiff claims that Defendants Altose and Moore violated Plaintiff’s rights under the Due
Process clause of the Fifth Amendment because they oversee the radiologist who allegedly
“withheld” the heart MRI.8/ Defendant Altose is the Chief of Staff for the Cleveland VA Medical
Center.9/ Defendant Moore is the Veterans Service Center Manager for the Cleveland Regional
Office.10/ Plaintiff brings his claims against Defendants Altose and Moore as a Bivens action, which
allows an individual to sue a federal agent for money damages when that agent has violated the
individual’s constitutional rights.11/
Although Plaintiff’s complaint is unclear, he appears to be alleging that he had a right to
receive the heart MRI and that the decision to “withhold” it violated his due process rights, either
because it lowered his disability rating (and thus the amount of benefits he receives), or because it
led to his 2012 heart attack.
II. Subject-Matter Jurisdiction
Defendants Altose and Moore first argue that this Court lacks subject matter jurisdiction over

5/

Doc. 1-25; Doc. 1-1.

6/

Doc. 1 at 5.

7/

See Doc. 1-1 at 2–3.

8/

Doc. 1 at 5–6; Doc. 1-1.
Doc. 7 at ¶ 3.

9/

10/

Doc. 5-1 at 2.

11/

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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Case No. 1:14-CV-02526
Gwin, J.
Plaintiff Rodriguez’s claims because they are “a thinly veiled attempt to challenge the VA’s
decision” regarding what disability flowed from Rodriguez’s ischemic heart condition.12/ The
Veterans Judicial Review Act (“VJRA”) requires that the VA’s benefits determinations first be
reviewed by the United States Court of Appeals for Veterans Claims, with appeals from that court
taken to the Federal Circuit.13/ “Congress intended to preclude district court jurisdiction over VA
decisions relating to benefits claims, including decisions of constitutional issues.”14/
While Plaintiff has a protected interest in VA benefits that he is qualified for,15/ this Court
is not the proper forum for him to challenge the VA’s benefits determination. A plaintiff may only
bring a Bivens action against a federal agent if Congress has not provided an equally effective
remedy for the violation of the individual’s constitutional rights.16/ With the VJRA, Congress has
created a comprehensive remedial structure for disputes about VA benefits determinations that
precludes the use of a Bivens action.17/ This Court does not have jurisdiction over Plaintiff’s claims
against Defendants Altose and Moore to the extent Plaintiff is using this suit to challenge the VA’s
disability determination.
III. Failure to State a Claim
Defendants Altose and Moore also argue that, to the extent Plaintiff alleges that not receiving

12/

Doc. 5-1 at 6; see Fed. R. Civ. P. 12(b)(1).

13/

38 U.S.C. §§ 511, 7252, 7292; Newsom v. Dep’t of Veterans Affairs, 8 F. App’x 470, 471 (6th Cir. 2001)
(per curiam).
14/

Beamon v. Brown, 125 F.3d 965, 974 (6th Cir. 1997).
See Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009).

15/
16/

See Left Fork Mining Co. v. Hooker, 775 F.3d 768, 774 (6th Cir. 2014) (citing Wilkie v. Robbins, 551 U.S.
537, 550 (2007)).
17/

Mehrkens v. Blank, 556 F.3d 865, 870 (8th Cir. 2009); Sugrue v. Derwinski, 26 F.3d 8, 12 (2d Cir. 1994);
see Beamon v. Brown, 125 F.3d 965, 974 (6th Cir. 1997) (“Congress intended to preclude district court jurisdiction over
VA decisions relating to benefits claims, including decisions of constitutional issues.”).

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Case No. 1:14-CV-02526
Gwin, J.
a heart MRI could implicate due process concerns, the complaint fails to state a claim on which relief
can be granted.18/ “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.’”19/ The plausibility
requirement is not “akin to a probability requirement,” but requires “more than a sheer possibility
that the defendant has acted unlawfully.”20/ In deciding a motion to dismiss under Rule 12(b)(6), “a
court should assume the[] veracity” of “well-pleaded factual allegations.”21/
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.’”22/ However, a pro se complaint must
still meet Rule 8’s minimum requirement of a “short and plain statement” showing entitlement to
relief.
Although Plaintiff Rodriguez’s complaint is unclear, he may be alleging that Defendants
Altose and Moore violated his due process rights by virtue of overseeing the unknown radiologist
who “withheld” Plaintiff’s heart MRI, which allegedly led directly to Plaintiff’s 2012 heart attack.
In a Bivens action, however, the plaintiff must plead that each “Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”23/ Plaintiff Rodriguez’s
assertion of supervisory liability does not satisfy this standard.

18/

Doc. 5-1 at 7–11; see Fed. R. Civ. P. 12(b)(6).

19/

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

20/

Id.

21/

Id.

22/

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.”).
23/

Iqbal, 556 U.S. at 676 (emphasis added).

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Case No. 1:14-CV-02526
Gwin, J.
Plaintiff has not alleged any facts in his complaint that suggest either Defendant Altose or
Defendant Moore personally engaged in any conduct that is relevant to this case. Plaintiff says that
the heart MRI he should have received “was withheld by a [r]adiologist who reports to” Defendant
Altose.24/ Plaintiff then says that because Defendant Altose is the Chief of Staff for the Cleveland
VA hospital, “the buck stops with” him.25/ Plaintiff similarly asserts that because Defendant Moore
is the Veterans Service Center Manager, Moore was negligent in “allow[ing]” Altose to withhold
the heart MRI.26/ Plaintiff’s allegations that Defendants acted “flagrantly,” “intentionally,” or
“negligently” with respect to his case are merely conclusory labels that the Court need not take as
true.
Because Plaintiff has failed to allege that Defendants Altose and Moore individually engaged
in any conduct that harmed him, let alone any unconstitutional conduct, he has not stated a claim
upon which relief can be granted.
IV. Conclusion
For the foregoing reasons the Court GRANTS Defendants Altose and Moore’s motion and
DISMISSES Plaintiff’s claims against them.
IT IS SO ORDERED.

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

Dated: July 15, 2015

24/

Doc. 1 at 5.

25/

Id.

26/

See Doc. 1-1 at 2.

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