Edmonds v. Department of Veteran Affairs Office of General Counsel

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Audrey F. Edmonds Objections to R&R due by 10/17/2016. Signed by Magistrate Judge Michael R. Merz on 9/30/16. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification along with providing a copy of the Complaint and this Report to Assistant United States Attorney Laura Clemmons.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
AUBREY EDMONDS,
Plaintiff,

-

vs

:

Case No. 3:16-cv-416

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

:

REPORT AND RECOMMENDATIONS; ORDER TO CLERK

This action is before the Court for review prior to issuance of process.

Plaintiff was

granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. 28 U.S.C. § 1915(e)(2), as
amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat.
1321(effective April 26, 1996)(the "PLRA"), reads as follows:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.

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A complaint is frivolous under this statute if it lacks an arguable basis either in law or in
fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989).

In

deciding whether a complaint is “frivolous,” that is, the Court does not consider whether a
plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong.
Rather the test is an objective one: does the complaint have an arguable basis in law or fact?
It is appropriate for a court to consider this question sua sponte prior to issuance of
process "so as to spare prospective defendants the inconvenience and expense of answering such
complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997);
Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually
is when making a determination based solely on the pleadings, to accept without question the
truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is
permitted under § 1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985),
disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d
1177 (6th Cir. 1985). § 1915(e)(2) does not apply to the complaint of a non-prisoner litigant who
does not seek in forma pauperis status. Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). Filing
an in forma pauperis application tolls the statute of limitations. Powell v. Jacor Communications
Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of Wayne, 148 F.3d
644, 648 (6th Cir. 1998)(federal question cases).
Plaintiff seeks to recover damages in the amount of $450 million from the United States
by virtue of wrongs done to her by various persons in the Department of Veterans Affairs. She
claims a number of acts of medical, dental, and psychiatric malpractice, as well as fraud. The
United States as an entity is immune from liability except insofar as it has consented to be sued.

2

Under the traditional doctrine of sovereign immunity, the United States may not be sued without
its consent. Hercules, Inc., v. United States, 516 U.S. 417 (1996); Lehman v. Nakshian, 453 U.S.
156 (1981). A waiver of sovereign immunity must be unequivocally expressed in statutory text
by Congress. FAA v. Cooper, 566 U.S. ___, 132 S. Ct. 1441, 182 L. Ed. 2d 497 (2012), citing,
e.g., Lane v. Pena, 518 U.S. 187 (1996). Any ambiguities are to be construed in favor of
immunity.

United States v. Williams, 514 U.S. 527 (1995).

While Congress has waived

sovereign immunity for some of the wrongful acts of its employees, this has been done in the
Federal Tort Claims Act and Plaintiff makes no mention of every having filed a claim under that
Act.
Accordingly, it appears to the Magistrate Judge that Plaintiff has attempted to sue the
United States, an entity entitled to sovereign immunity, without showing an exception to that
immunity by way of Congressional waiver. It is therefore respectfully recommended that the
Complaint be dismissed without prejudice to re-filing if Plaintiff can show an exception to
sovereign immunity.

Order to the Clerk:

1.

Do not issue process in this case without further court order.

2.

Delivered a copy of the Complaint and this Report to Assistant United States Attorney

Laura Clemmons.

September 30, 2016.
s/ Michael R. Merz
United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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