Pollard v. United States Department of Veterans Affairs et al

Filing 3

REPORT AND RECOMMENDATIONS granting 1 MOTION for Leave to Proceed in forma pauperis & recommending that the 2 Complaint be dismissed w/out prejudice for lack of subject matter jurisdiction. Signed by Magistrate Judge Terence P Kemp on 2/5/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSE D. POLLARD,

:

Plaintiff,

Case No. 2:13-CV-069

:
:
:

v.
DEPARTMENT OF VETERANS
AFFAIRS, et al.,

JUDGE ECONOMUS
Magistrate Judge Kemp

:
:

Defendants.

:

REPORT AND RECOMMENDATION
On January 25, 2013, plaintiff Jesse D. Pollard filed a pro
se complaint against the United States Department of Veterans
Affairs, VAOPC Columbus, Ohio, VAMC Dayton, Ohio, VAMC
Cincinnati, Ohio, and VA Regional Office Cleveland, alleging
monetary damages related to treatment for a medical injury.
Pollard also moved to proceed in forma pauperis.

Mr.

Mr. Pollard

qualifies financially for in forma pauperis status, so the motion
to proceed in forma pauperis will be granted.

(Doc. #1).

For

the following reasons, it will be recommended that this action be
dismissed pursuant to 28 U.S.C. §1915(e)(2).
I.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, the court shall dismiss the case if the action fails to
state a claim on which relief can be granted.

A complaint may

not be dismissed for failure to state a claim upon which relief
can be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face.”
Corp. v. Twombly, 550 U. S. 544, 570 (2007).

Bell Atlantic

Pro se complaints

are to be construed liberally in favor of the pro se party.
Haines v. Kerner, 404 U.S. 519 (1972).
evaluated under these standards.

The complaint will be

See

II.
The Federal Tort Claims Act (“FTCA”) bars claimants from
bringing a lawsuit against the United States for monetary damages
until they have exhausted their administrative remedies. 28
U.S.C. §2675(a).

Accordingly, a plaintiff cannot institute a

lawsuit against the United States for monetary damages based on
personal injury:
caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the
scope of his 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 . . .
Id.

More specifically, a claimant may not file a lawsuit

against the United States until either: (1) an agency denied
relief in writing and sends its decision to the claimant by
certified or registered mail or (2) an agency fails to make
a final decision on the claim within six months after it is
filed.

Id.

The need to exhaust administrative remedies is

a jurisdictional requirement; consequently, if a plaintiff
fails to exhaust his or her administrative remedies, then
the Court lacks subject matter jurisdiction to entertain the
claims.

See McNeil v. United States, 508 U.S. 106, 113

(1993).

That is, it simply has no power to hear the case at

all.
There is no evidence before the Court that Mr. Pollard
submitted his claims to the Department of Veterans Affairs prior
to bringing the instant lawsuit.

Because Mr. Pollard has

apparently failed to exhaust his administrative remedies prior to
seeking relief in this Court, he may not have satisfied the
prerequisite under the FTCA.

Although pro se pleadings are to be

construed liberally, Mr. Pollard is still required to demonstrate
that he has complied with the relevant jurisdictional

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requirement.

See, e.g., F. R. Civ. P. 8(a)(1) (stating that “a

claim for relief must contain . . . a short and plain statement
of the grounds for the court’s jurisdiction”).

Because Mr.

Pollard has failed to do so, the Court recommends that the claims
be dismissed for lack of subject matter jurisdiction.

Of course,

if Mr. Pollard actually submitted a claim to the Department of
Veterans Affairs, but neglected to mention that fact in his
complaint, he may point that out in any objection he files to
this Report and Recommendation.
III.
For the foregoing reasons, the Court recommends that Mr.
Pollard’s claims be dismissed without prejudice pursuant to 28
U.S.C. §1915(e)(2) for lack of subject matter jurisdiction.
IV.
If any party seeks review by the District Judge of this
Report and Recommendation, that party may, within fourteen (14)
days of the date of this Report, file and serve on all parties
written objections to those specific proposed findings or
recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court

shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.

Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence or
may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
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Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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