HALL v. AFSCME et al

Filing 5

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO AMEND ORIGINAL COMPLAINT IS GRANTED. THE COURT WILL TREAT PLAINTIFF'S FILING AS AN AMENDED COMPLAINT. THE AMENDED COMPLAINT IS DISMISSED; ETC.. SIGNED BY HONORABLE C.DARNELL JONES ON 9/25/17. 9/26/17 ENTERED AND MAILED TO PRO SE.(jl, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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GARY EDWARD HALL

CIVIL ACTION

v.
AFSCME, et al.

NO. 17-3417

~VO~
MEMORANDUM
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JONES, J.

SEPTEMBER

~017

Plaintiff Gary Hall, a veteran, filed this civil action based on how he has been treated by
employees of the Veteran's Administration (VA) since 2010. Currently before the Court is
plaintiffs motion for leave to amend. The Court will grant the motion, treat the filing as an
amended complaint, and dismiss the amended complaint for the following reasons.

I.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed this civil action against AFSCME, the Department of Veterans Affairs
(VA), and the Attorney General of the United States. He alleged that "federal employees
[AFSCME] and their affiliates through V.A. Medical Centers ... insidiously deny/harass
plaintiff medical benefits and his efforts to end his homelessness, which is covered in U.S. Code
and federal regulations." (Compl. at 3.) In an August 3, 2017 order, the Court dismissed the
complaint, concluding that it lacked subject matter jurisdiction over any claims seeking review of
benefits-related decisions by the V.A. To the extent plaintiff was raising claims within the
Court's jurisdiction, the Court could not discern a clear basis for understanding what laws or
regulations were violated or how AFSCME or the Attorney General could be held legally
responsible for any claims arising out of plaintiffs interactions with VA employees. Plaintiff
was given leave to file an amended complaint.

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Plaintiff returned with a "motion to amend original complaint." He indicated that he
would like to raise claims against: (1) J. David Cox, president of the American Federation of
Government Employees (AFGE), a union for employees of the federal government; (2) Donald
J. Shulkin, Secretary of the VA; and (3) the VA. He asserts violations of his due process rights,
right to free speech, and right to be free from cruel and unusual punishment.
Plaintiffs allegations concern medical treatment at three different VA facilities and his
belief that, since 2010, VA employees are interfering with his medical care and/or failing to
provide him the benefits he is owed by the VA. Plaintiff contends that when he sought medical
care through the VA, his care "was subject to the oversight of individuals distinguished only by
their sudden appearance of men, with white jackets without name tags." (Compl. at 2.) Plaintiff
takes issue with the fact that VA employees and/or AFGE members know who he is even if they
have not had prior contact with him. He also contends that a transitional home to which he was
referred required reimbursement beyond what he believes the home was entitled under applicable
regulations. He also believes that VA medical personnel were hostile to him, mistreated him,
and harassed him. Plaintiff has concluded that "[t]he totality of the numerous actions of
employees of the [VA] possibly relate to unlawful experimentation being done on [his] person,
without [his] consent." (Id. at 4.)
The complaint references a prior civil action filed by plaintiff in 2010, Hall v. Chambers,
Civ. A. No. 10-5204, which concerned his treatment at a VA facility in Coatesville. The Court
granted summary judgment to the defendants in that case. The complaint in the present civil
action reflects that plaintiff is dissatisfied with the resolution of his 2010 case; he "presumes that
clerks of the United States District Court for eastern Pennsylvania are most likely, also members
of AFGE." (Compl. at 5.)

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In his motion to amend, plaintiff alleges in response to the Court's initial order in this
case, that he is not seeking a review of benefits determinations. Instead, he contends that he
seeks to raise constitutional claims against the defendants based on the "insidious and pernicious
actions now applied to his entitlements by AFGE and the [VA]." (Compl. at 7.)

II.

STANDARD OF REVIEW

As plaintiff is proceeding in forma pauper is, the Court must dismiss his complaint if it
frivolous, malicious, or fails to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). 1 To survive
dismissal for failure to state a claim, the complaint must contain "sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). Conclusory statements and naked assertions will not
suffice. Id. As plaintiff is proceedingpro se, the Court construes his allegations liberally. Higgs

v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011). Furthermore, "[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P.
12(h)(3).

III.

DISCUSSION

The Court understands the complaint to be predicated on plaintiffs dissatisfaction with
his experience with the VA and treatment by VA employees over a span of approximately seven
years. The basis for plaintiffs claims against J. David Cox, president of the American
Federation of Government Employees (AFGE), appears to be his belief that those VA employees
are members of the AFGE and that they are powerful and/or act in concert by virtue of their
union membership. Regardless of any claims plaintiff may have arising from his treatment by
VA employees, those employees' membership in a union does not provide a basis for a claim

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Section 1915(e)(2)(B) applies to civil cases filed by any plaintiff proceeding informa pauperis,
not just those who are incarcerated.
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against the president of the union or the union itself. Likewise, plaintiffs dissatisfaction with
the resolution of his 2010 lawsuit does not give rise to a claim against Cox based on plaintiffs
presumption that Court staff are members of the AFGE. In other words, the Court cannot discern
any legal basis for Cox's liability from the complaint. Accordingly, the Court will dismiss those
claims with prejudice.
Additionally, plaintiff may not reassert any claims that have already been litigated in his
2010 civil action. If plaintiff is raising claims in this lawsuit based on facts or events that were at
issue in his 2010 lawsuit, the Court will dismiss those claims because they have already been
litigated. See Brodzki v. CBS Sports, Civ. A. No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan.
13, 2012) ("[A] district court may dismiss a complaint as malicious if it is plainly abusive of the
judicial process or merely repeats pending or previously litigated claims."). Plaintiff may not
reassert those claims in a new lawsuit, even if he is dissatisfied with how they were resolved.
Turning to plaintiffs claims against the VA and the Secretary of the VA, plaintiff is
attempting to raise claims, apparently pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971 ), based on allegations that various VA employees violated his
constitutional rights in connection with how they treated him at VA facilities and/or administered
his benefits over the past seven years.

Plaintiff specifically alleges that he "is not seeking

review of his benefits." (Compl. at 7.) However, he also alleges that VA employees "colluded
to deny plaintiff his entitlements as they concern a homeless veteran" and appears to be claiming
that he is not receiving benefits to which he is entitled. (Id. at 3.) As noted in the Court's prior
order, the Veterans Judicial Review Act sets forth a procedure that plaintiff may follow to
challenge the VA's decisions as they relate to his benefits. See Magner v. Dep't of Veterans
Affairs, No. CIV.A. 14-2873 JBS, 2015 WL 4623451, at *2 (D.N.J. Aug. 3, 2015) ("The VJRA

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creates an exclusive review procedure by which veterans may resolve their disagreements with
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the Department of Veterans Affairs."). The Veteratjs Judicial Review Act precludes this Court
from reviewing those decisions, regardless of how Blaintiff characterizes them. See 38 U.S.C. §
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51 l(a); Jayme v. United States, Civ. A. No.

10-324~,

2011 WL 4412431, at *3 (D.N.J. Sept. 21,

2011) ("[A] plaintiff cannot simply characterize his !challenge to a benefits determination as a
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constitutional claim in order to overcome the jurisd~ctional bar of 38 U.S.C. § 511 [.] ").
Accordingly, to the extent plaintiff is essentially ch4llenging benefits-related decisions, the Court
must dismiss those portions of his claims for lack of subject matter jurisdiction.
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Plaintiffs exclusive remedy for any neglige~ce or intentional torts committed by VA
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employees in the course of treating him at VA facil~ties is a claim against the United States under
the Federal Tort Claims Act (FTCA). See Brown v. Mercadante, 687 F. App'x 220, 222-23 (3d
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Cir. 2017) (per curiam); see also 38 U.S.C. § 7316(~), (f). In other words, a Bivens action does
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not exist to remedy the type of conduct described itj plaintiffs complaint. See Ingram v.

Faruque, 728 F.3d 1239, 1246 (10th Cir. 2013) ("~e conclude that the [VA Immunity Statute]
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provides an exclusive remedy that precludes the cre~tion of a remedy under Bivens.").
The FTCA partially waives the federal gove~nment's sovereign immunity to allow
liability for the torts of federal employees acting within the scope of their employment "under
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circumstances where the United States, if a private person, would be liable to the claimant in
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accordance with the law of the place where the act <pr omission occurred." 28 U.S.C. §
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1346(b)(l). The United States is the only proper d1fendant in a FTCA action. See CNA v.

United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008)1; see also Gary v. Pa. Human Relations
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Comm'n, 497 F. App'x 223, 228 (3d Cir. 2012) (pe~ curiam) ("[T]he FTCA authorizes suits only
against the United States itself, not individual deferldants or agencies."). Furthermore, "[a] tort

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claim against the United States shall be forever barred unless it is presented in writing to the
appropriate Federal Agency within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b); see Shelton v.
Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015) ("No claim can be brought under the FTCA unless the

plaintiff first presents the claim to the appropriate federal agency and the agency renders a final
decision on the claim.").
It is not clear whether plaintiff exhausted his claims and received a final denial before

bringing this action, presumably because he did not intend to proceed under the FTCA. It also
appears that several of plaintiffs claims may be time-barred because his complaint discusses
events going back to 2010. However, as it is possible that plaintiff could assert a timely FTCA
claim that has been exhausted, the Court will give plaintiff leave to file a secon~~T!Ef ~ E W)
complaint.

IV.

CONCLUSION

Cl~R:~ O\= COURT

For the reasons explained above, plaintiff does not have a legal basis for,a claim against
the president of the AFGE. Additionally, he cannot bring a Bivens claim based on the conduct of
VA employees in administering treatment or administering his benefits. If plaintiff would like to
challenge the administration of his benefits by the VA, he must follow the procedure set forth in
the Veterans Judicial Review Act. If plaintiff seeks to bring claims against the United States
based on torts allegedly committed by VA employees in the course of administering treatment,
he may file a second amended complaint in this case under the Federal Tort Claims Act, but only