De Jesus-Maldonado v. Hospital de Veteranos et al

Filing 9

OPINION AND ORDER granting 8 MOTION to Dismiss/Lack of Jurisdiction as to Veterans Administration Hospital. Signed by Judge Salvador E Casellas on 8/24/2009.(THD)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO O S C A R DE JESUS-MALDONADO Plaintiff v. V E T E R A N S ADMINISTRATION H O S P T IA L , ET AL D e f e n d a n ts C iv il No. 09-1574

Opinion & Order P e n d in g before this Court is Defendant Veterans Administration Hospital's ("VA")

11 m o tio n to dismiss (Docket # 8). Plaintiff, Oscar De Jesus-Maldonado ("De Jesus"), has not 12 p ro f f e re d an opposition. After reviewing the filings, and the applicable law, Defendants' motion 13 to dismiss is GRANTED. 14 15 16 17 18 19 20 21 22 23 24 25 26 F a c tu a l & Procedural Background On June 25, 2009, the VA removed the present lawsuit, which Plaintiff originally filed p r o se in the Puerto Rico Court of First Instance - San Juan Section. See Docket # 8, Exh. I. P la in tif f alleges that he underwent surgery at the San Juan VA Hospital on May 21, 2008, and th a t various weeks later he realized a 12 inch-long wire was left in his body by the attending p h ys ic ia n and nurses. See also Docket # 1-4 at 4. As a result, Plaintiff allegedly had to be o p e ra te d on again, which led to a kidney failure, excruciating pain, and a nearly fatal infection. Id . In order to seek redress for his perceived injuries, he brought the present claim under Article 1 8 0 2 of the Civil Code of Puerto Rico. The VA answered plaintiff's claim with a notice of removal to this Court, alleging that t h e present matter is the exclusive jurisdiction of the Federal Tort Claims Act (FTCA). 28

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U .S .C .§ 2671 et seq. Furthermore, the VA alleges that the FTCA and 28 C.F.R. 13.604(a) re q u ire that tort claims against the agency and its employees first be submitted to administrative re v ie w . To wit, the VA has submitted an affidavit showing that a review of the VA's records a f f irm s that Plaintiff has not filed an administrative tort claim in this VA region. See Docket # 8, Exh. I. In light of this, the VA filed the present motion alleging that this Court lacks subject m a tte r jurisdiction, and that the United States of America is the only proper party defendant in a suit of this nature. Because Plaintiff has not opposed the present motion to dismiss, he has w a iv e d his opportunity to present counter arguments. S ta n d a r d of Review F ED. R. CIV. P. 12(b)(1) is the proper vehicle for challenging a court's subject matter

13 ju ris d ic tio n . Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this 14 ru le , a wide variety of challenges to the Court's subject matter jurisdiction may be asserted, 15 a m o n g them those based on sovereign immunity, ripeness, mootness, and the existence of a 16 f e d e ra l question. Id. (citations omitted). When faced with a similar jurisdictional challenge, 17 this Court must ". . . give weight to the well-pleaded factual averments in the operative 18 p le a d in g s [. . .] and indulge every reasonable inference in the pleader's favor." Aguilar v. U.S. 19 Im m ig ra tio n and Customs Enforcement Div. of Dept. of Homeland Sec., 510 F.3d 1, 8 (1st 20 C ir .2 0 0 7 ) . 21 22 23 24 25 26 A plaintiff faced with a motion to dismiss for lack of subject matter jurisdiction has the b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D. P .R . 2001). However, in order for a plaintiff's claim to be dismissed for lack of subject matter ju ris d ic tio n , due to the inadequacy of the plaintiff's federal claim, that claim must be ". . . so

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in s u b s ta n tia l, implausible, foreclosed by prior decisions of this Court, or otherwise completely d e v o id of merit as not to involve a federal controversy." Oneida Indian Nation of N.Y. v. C o u n ty of Oneida, 414 U.S. 661, 666 (1974). In this context, this Court is empowered to resolve f a c tu a l disputes by making reference to evidence in the record beyond the plaintiff's allegations w ith o u t having to convert the motion to dismiss into one for summary judgment. See Lord, 789 F . Supp. at 33 (D. Me. 1992); see also SURCCO, 157 F. Supp. 2d at 163 (D. P.R. 2001). " W h e re a party challenges the accuracy of the pleaded jurisdictional facts, the court may c o n d u c t a broad inquiry, taking evidence and making findings of fact." Hernández-Santiago v. E c o la b , Inc., 397 F. 3d 30 (1st Cir. 2005). Therefore, the court may consider extrinsic materials, " a n d , to the extent it engages in jurisdictional fact-finding, is free to test the truthfulness of the p la in tif f 's allegations." Dynamic, 221 F. 3d at 38. That is, the principle of conversion of a m o tio n to dismiss into a motion for summary judgment when extrinsic materials are reviewed, d o e s not apply in regards to a motion to dismiss for lack of subject matter jurisdiction. Id. A p p lic a b le Law & Analysis The FTCA acts as a waiver of the United States's sovereign immunity for some torts

18 c la im s . And its section 28 U.S.C.§ 1346(b)(1) establishes that the United States District Courts 19 h a v e exclusive jurisdiction for claims against the United States. The statute also "provides that 20 th e federal district courts shall have exclusive jurisdiction over damages claims against the 21 U n ite d States for injury or loss of property, or for personal injury or death `caused by the 22 n e g lig e n t or wrongful act or omission of any employee of the Government while acting within 23 th e scope of his office or employment.'" Celestine v. Mount Vernon Neighborhood Health 24 C e n te r, 403 F.3d 76, 80 (2n d Cir. 2005). Because of the exclusive nature of the remedy, an FTCA 25 a c tio n may not be brought in conjunction with a state law tort claim, such as Article 1802. 26

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F u rth e rm o re , the FTCA immunizes most federal employees and agents from " . . . liability for n e g lig e n t or wrongful acts done in the scope of their employment." Id. T h e VA successfully argues that Plaintiff erred when he filled the present suit eo nomine

6 a g a in s t the agency, and other individual defendants. The First Circuit has interpreted that the 7 F T C A bars suit bars tort suits directed against federal agencies and their employees eo nomine. 8 A rm o r Elevator Co., Inc. v. Phoenix Urban Corp., 655 F.2d 19, 22 (1st Cir. 1981). Rather FTCA 9 c la im s must be brought against the United States directly. Accordingly, all claims against the 10 V A , and the individual co-defendants are hereby DISMISSED WITH PREJUDICE. 11 If the only defect in Plaintiff's complaint were the parties he named, or his choice of law,

12 th is Court would permit Plaintiff to amend the complaint due to his pro se status. Nevertheless, 13 F T C A claims require that in order for the United States to waive its immunity "an

14 a d m in is tra tiv e claim be filed and finally denied. . ." Celestine v. Mount Vernon Neighborhood 15 H e a lth Center, 283 F. Supp. 2d 392, 399 (S.D.N.Y. 2003); McNeil v. United States, 508 U.S. 16 1 0 6 , 113 (1993). Thus, "an administrative claim is thus an absolute jurisdictional prerequisite 17 to litigation." Ewing v. Beth Israel Deaconess Medical Center, No. 09-11128, 2009 WL2425966 18 (D . Mass. 2009); see also Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002). Plaintiff 19 h a s not alleged that he filed an administrative complaint, and the VA has proffered evidence that 20 n o effort has been made to bring the grievance before the agency. Accordingly, this complaint 21 m u s t be DISMISSED. Plaintiff may pursue administrative remedies with the VA, and then, if 22 n e c e s s a ry, file a new claim against the United States. 23 24 25 26 F o r the foregoing reasons, the present claim is DISMISSED. Judgment shall be entered accordingly. CONCLUSIONS

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CIVIL NO. 09-1574 (SEC) IT IS SO ORDERED. In San Juan, Puerto Rico, this 24th day of August, 2009. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge

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