Bush v. United States et al

Filing 28

ORDER adopting Report and Recommendation; granting 9 Motion to Dismiss for Lack of Jurisdiction; overruling plaintiff's objections. Signed by Judge Herman J. Weber on 3/6/14. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WILLIE JAMES BUSH,
Plaintiff,
v.

Case No. 1:13-cv-76-HJW

SECRETARY OF THE DEPT.
OF VETERANS AFFAIRS, et al.,
Defendants
ORDER

This matter is before the Court upon the defendants’ “Motion to Dismiss”
(doc. no. 9). The Magistrate Judge recommended that the pro se plaintiff’s
complaint be dismissed on several grounds, including lack of subject-matter
jurisdiction and failure to state a claim for relief (doc. no. 20, Report and
Recommendation); Fed.R.Civ.P. 12(b)(1) and (6). Plaintiff filed AObjections@ (doc.
no. 22), and the United States responded. This Court has fully considered the
record, including the pleadings, exhibits, objections, responses, and replies.
Upon de novo review, the Court will overrule the plaintiff’s objections and adopt
the Report and Recommendation, for the following reasons:

On February 7, 2013, plaintiff filed in federal court a pre-printed complaint
form that did not include any factual allegations. He indicated, in his own words,
that he wants the Court to make the “United States pay me 227.6 Trillion dollars
for damages the the (sic) Dept. of Veterans Affairs has cause (sic) me + my family
for the last 33 years!” (doc. no. 5 at 4). He indicates “this claim is thirty-three

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years old!” and gives instructions on how he wants to be paid (doc. no. 5-1 at 3).
Plaintiff attached a prior administrative tort claim, consisting of the following
paragraph:
“Filing lawsuit against United States, because US Air Force and
Cincinnati VAMC didn’t do a thorough job in checking out
injuries from motorcycle accident (right foot), plus hearing lost
due to work on flightline and US Post Office as mechanic!
Regional Office sitting on claim and not processing for
compensation and pension and update for 100% disability”
(doc. no. 5-1 at 2).
He attaches additional documents, including: 1) a one-page letter from his doctor
indicating that the injury to plaintiff’s right foot and ankle is “a thirty-two year old
injury” (doc. no. 5-1 at 18); 2) medical records from a September 21, 2012 hearing
evaluation, reflecting “normal range” (Id. at 20-21); 3) an audiologist’s 2008
progress notes regarding plaintiff’s complaints of “dizziness” (Id. at 24, 26-27);
and 4) a letter dated January 14, 2013 from the Department of Veterans Affairs,
informing plaintiff that his administrative tort claim was denied (Id. at 4). The
record reflects that plaintiff served on active duty in the United States Air Force
February 1972 – October 1980 (doc. no. 24-1 at 2). While en route to an
assignment in April 1980, he was injured in a motorcycle accident. He later
worked for the US Post Office 1982 - 2005 (doc. no. 5-1 at 26).
Although plaintiff appears to be bringing a claim under the Federal Tort
Claims Act, his complaint reflects no basis for bringing such a claim. As the
Magistrate Judge aptly observed, the gist of plaintiff’s complaint is that “he was
denied a 100% disability rating by the Veterans Administration based on his
hearing loss and foot injury” (doc. no. 20 at 2). In other words, plaintiff is

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complaining of a benefits determination by the Veterans Administration, based on
his disability rating for service-connected injuries he incurred many years ago.
Although plaintiff’s allegations are vague as to time, an October 25, 2012 letter
from plaintiff’s own doctor confirms that “this is a thirty-two year old injury” (doc.
no. 5-1 at 18).
This Court agrees with the Magistrate Judge’s conclusion that dismissal is
appropriate. First, the intra-military doctrine enunciated in Feres v. United States,
340 U.S. 135 (1950) precludes consideration of FTCA claims for injuries incident
to military service, such as plaintiff’s injuries from the motorcycle accident.
Second, claims for veteran’s benefits are governed exclusively by the Veterans
Judicial Review Act (“VJRA”), and the Court for Veterans Appeals has exclusive
jurisdiction over appeals from final decisions of the Bureau of Veterans Affairs.
38 U.S.C. § 7252(a). The record indicates that plaintiff has previously appealed the
benefits decision. Plaintiff may not challenge such decision here.
Plaintiff’s reply confirms that he is attempting to challenge the benefits
decision (doc. no. 24). He complains that the Department of Veterans Affairs
“does not do their job” (sic) and that he is “referring to: United States Court of
Appeals for Veterans Claims, No. 12-1616, Willie J. Bush, Jr. v. Eric Shinseki,
Secretary of Veterans Affairs.” He attaches a copy of such decision, with various
parts inexplicably blacked out. He also attaches another decision, In the Appeal
of Willie J. Bush, Jr., Docket No. 01-06-149, dated January 16, 2014 (doc. no. 24-1
at 9), which indicates the court was reviewing a disability “rating decision issued
by the Dept. of Veterans Affairs.” As the Magistrate Judge correctly

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recommended, this court has no jurisdiction over such benefits determinations.
Even though the Court is sympathetic to plaintiff’s frustration at not obtaining the
benefits he feels he is due, this Court is not the proper forum to challenge those
benefits decisions.
In response to plaintiff’s objections, the United States correctly points out
that even under the liberal treatment afforded pro se litigants, the plaintiff’s
generalized objection that the “VA does not do its job” is not a proper objection
based on any specific facts or law. The plaintiff’s objections may be overruled on
that basis alone. See Howard v. Secretary of HHS, 932 F.2d 505, 508-09 (6th Cir.
1991) (observing that general objections are insufficient); Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995) (objections must be specific); Smith v. Detroit Fed. of
Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987) (same). To the extent plaintiff
attempts to assert new allegations in his reply to the objections, parties generally
may not “raise at the district court stage new arguments or issues that were not
presented to the magistrate." Murr v. U.S., 200 F.3d 895, 902 fn.1 (6th Cir. 2000).
One final point bears mentioning. Given the lack of clarity in the pro se
plaintiff’s complaint, the Magistrate Judge appropriately considered the
possibility that plaintiff was attempting to allege a claim of “medical malpractice.”
The Court finds that plaintiff’s minimal allegations do not adequately plead such a
claim. Even assuming that plaintiff is attempting to assert this claim, the
Magistrate Judge correctly pointed out that such claim would be subject to
dismissal because plaintiff failed to file the necessary “affidavit of merit” required
by Ohio Civil Rule 10(D)(2). The majority of district courts within this circuit have

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held that such rule is substantive and must be applied in FTCA actions in federal
court. See Bennafield v. U.S., 2013 WL 5173221, *1 (N.D.Ohio) (J. Adams) (“the
Court finds itself in agreement with what appears to be the overwhelming
majority position that these types of requirements are substantive and not in
conflict with federal rules”). When a plaintiff fails to attach the required affidavit
of merit, courts may properly dismiss the action. See, e.g., Willis v. Dept. of Vet.
Affairs, 2013 WL 3155785 (S.D.Ohio) (J. Graham) (dismissing complaint with
prejudice pursuant to Rule 12(b)(6)); Daniel v. United States, 716 F.Supp.2d 694
(N.D.Ohio) (J. Gaughan) (same)); Bierbauer v. Manenti, 2010 WL 4008835, *10
(N.D.Ohio) (J. Lioi) (same).
With his objections, plaintiff resubmitted several documents previously
attached to his complaint (see doc. no. 5-1 at 18, 20-21) and added the handwritten caption “affidavit of merit” on them (doc. no. 22-1 at 3-5). 1 Such
documents do not satisfy the substantive requirements of the Ohio rule. The
affidavit of merit must be from an expert qualified under Evid. R. 601(D) and 702
and must include statements that the affiant (1) has reviewed all medical records
reasonably available, (2) is familiar with the applicable standard of care, and (3) is
of the opinion that the defendants breached the standard of care and caused the
plaintiff's injury. Ohio Civ. R. 10(D)(2); Fletcher v. Univ. Hosp. of Cleveland, 120
Ohio St.3d 167, 169 (2008) (reciting requirements of rule). The rule is designed to
“ensure that only those plaintiffs truly aggrieved by the hands of the medical

1

These documents are: 1) a one-page doctor’s letter, dated October 25, 2012,
about plaintiff’s 32-year old injury to his right foot and ankle; and 2) several pages
of test results from his 2012 hearing test.
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profession have their day in court”. Id. The documents supplied by plaintiff do
not comply with the rule.
Courts may properly deny leave to cure a deficient affidavit of merit where
amendment would be futile. See, e.g., Bierbauer v. Manenti, 2010 WL 4008835, *10
(N.D.Ohio) (J. Lioi) (dismissing case and noting that “even if plaintiff amended the
complaint by attaching a certificate of merit, his FTCA claims would be barred
under the statute of limitations.”). Here, amendment would be futile. As already
discussed, any claim for injuries incident to his military service would be barred
by the Feres doctrine. Any claim alleging medical malpractice decades ago would
also be time-barred. Kennedy v. U.S. Veterans Admin., 526 Fed.Appx. 450 (6th Cir.
2013) (holding that FTCA statute of limitations applied to medical malpractice
claim against VA, and plaintiff had two years from accrual of claim to file
administrative claim, and then six months from denial of administrative claim to
file federal complaint) (citing 28 U.S.C.A. §§ 1346(b), 2401(b)); Schappacher v.
U.S., 475 F.Supp.2d 749, 754 (S.D.Ohio 2007) (“In a medical malpractice case
brought pursuant to the FTCA, the accrual of the cause of action occurs when a
plaintiff discovers that he has been injured and discovers who has inflicted the
injury.”).
To the extent plaintiff’s complaint could be construed as alleging medical
malpractice based on more recent medical evaluations, such as his 2012 hearing
test, the complaint does not allege any resulting personal injury. Plaintiff merely
disagrees with the doctor’s assessment, which apparently has hampered
plaintiff’s quest for benefits. For example, plaintiff complains that a Veterans Law

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Judge rendered a benefits decision based on the “quack doctor (Lindy Imfante’s)
medical evaluation of me” and that “this is one example of the VA not doing their
(sic) job and delaying compensation for the veteran!” (doc. no. 24). 2
Although a pro se complaint must be liberally “construed as to do
substantial justice,” Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003), courts
should not “conjure up unpled allegations” or construct a plaintiff’s arguments
for him, Erwin v. Edwards, 22 Fed.Appx. 579, 580 (6th Cir. 2001). The Court finds
that plaintiff’s allegations cannot reasonably be construed as stating a claim for
“medical malpractice.” A cause of action for medical malpractice is a type of
personal injury claim, and the complaint does not allege that plaintiff suffered any
bodily-harm from any deficient medical care by VA physicians. See Bruni v.
Tatsumi, 46 Ohio St.2d 127, ¶ 1 of syllabus (1976) (identifying the elements for
medical malpractice); Culp v. Olukoga, 2013 WL 6199306, *17 (Ohio App. 4 Dist.)
(the breach of the applicable standard of medical care must have directly and
proximately caused the plaintiff's injury). Plaintiff

merely disagrees with the

medical assessments that his disability rating is based on. He “disagrees”
because he wants a 100% disability rating in order to obtain benefits. Plaintiff’s
objections and reply confirm that he is complaining of his benefits determination.
In sum, plaintiff has not stated a claim for medical malpractice, and thus,
providing an affidavit of merit (or curing a deficient one) would be pointless.
For all the reasons discussed above, plaintiff’s objections are without merit
and his complaint is subject to dismissal.

2

None of the attached medical records bear such doctor’s name.
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Accordingly, the defendants’ “Motion to Dismiss” (doc. no. 9) is GRANTED;
the plaintiff=s AObjections@ (doc. no. 22) are OVERRULED; and the Magistrate
Judge’s Report and Recommendation (doc. no. 20) is ADOPTED.
This case is DISMISSED and TERMINATED on the docket of this Court.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

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