Jenkins v. Snyder

Filing 32

ORDER granting 20 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jeffrey L. Viken on 8/29/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 17-5043-JLV

JOHN PAUL JENKINS,
Plaintiff,

ORDER

vs.
ROBERT WILKIE, Secretary of the
Department of Veteran Affairs,
Veterans Health Administration, 1
Defendant.
INTRODUCTION

Defendant Robert Wilkie, Secretary of the Department of Veteran Affairs
filed a motion to dismiss Plaintiff John Jenkins’ complaint. (Docket 20). Mr.
Jenkins resists defendant’s motion. (Dockets 23, 23-1, 25, 25-2, & 31). Mr.
Jenkins separately filed a response containing a request for an inference
judgment and a second request for an inference judgment. (Dockets 26 & 27).
Defendant resists plaintiff’s requests. (Docket 30). For the reasons stated
below, plaintiff’s requests for inference judgments are denied as moot.
FACTUAL BACKGROUND
Plaintiff Paul Jenkins, appearing pro se, filed a complaint against
Defendant Robert Wilkie, Secretary of the Department of Veteran Affairs.

Robert Wilkie was confirmed as Secretary of Veteran Affairs on July 23,
2018. Pursuant to Fed. R. Civ. P. 25(d), Mr. Wilkie is automatically
substituted for Robert Snyder as the defendant in all pending Veterans Affairs’
(“VA”) cases.
1

(Docket 1). Plaintiff’s handwritten complaint is scant and difficult to decipher,
but appears to assert the following claims:
Veterans Administration whistleblower;
Reprisal and threats of work place violence for reporting Health
Insurance Portability and Accountability Act (“H.I.P.A.A.”)
violations;
Fraud and misappropriation of tax dollars;
Reprisal for filing Equal Employment Opportunity Commission
(“EEOC”) complaints;
Identity theft; and
Insurance fraud.
Id. at p. 3. Without clarifying factual support, these claims and other more
generalized claims are advocated in subsequent filings. See Dockets 23-1 and
25-26. While those submissions will not be considered as additional claims,
the court will consider them in ruling on defendant’s motion. 2
Secretary Wilkie moves to dismiss plaintiff’s complaint pursuant to Fed.
R. Civ. P. 12(b) for “fail[ing] to state a claim upon which relief may be granted.”

2See

Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 990 n.4 (8th Cir.
2015) (“Fischer failed to include these claims in his complaint, failed to file an
amended complaint . . . and did not . . . petition to court to amend his
complaint. Accordingly, these claims were not properly before the district
court.”) (internal citations omitted); Morgan Distributing Co., Inc. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a motion to
dismiss.”); Midland Farms, LLC v. United States Department of Agriculture,
35 F. Supp. 3d 1056, 1066 (D.S.D. 2014) (“Midland may not amend its
Complaint through an argument raised in a brief in opposition to a motion to
dismiss.”) (collecting cases).
2

(Docket 20). The basis for defendant’s motion is essentially that Mr. Jenkins’
claims were resolved in a settlement agreement of October 1, 2010. (Docket
21 at pp. 4-8).
The history between Mr. Jenkins and the Veterans’ Administration is
summarized as follows. Mr. Jenkins, a disabled veteran, was employed at the
VA Illiana Health Care System in Danville, Illinois, from October 8, 1987, to
October 29, 2010. (Docket 22 ¶ 7). Prior to the end of that employment, Mr.
Jenkins filed a complaint of employment discrimination with the VA. (Docket
22-1 at p. 2). A formal complaint was filed with the VA on September 7, 2010,
in which Mr. Jenkins “alleged that based on disability and reprisal, [he] was
subjected to a hostile work environment.” (Docket 22-4 at p. 1).
On October 1, 2010, Mr. Jenkins and the VA entered into a settlement
agreement regarding his claims. (Docket 22-3). As part of the settlement, Mr.
Jenkins agreed to “voluntarily withdraw all EEOC complaints at whatever stage
in whatever forum in their entirety; and, said EEOC complaints are subject to
dismissal.” Id. ¶ 1. In addition to the dismissal of any EEOC complaints, Mr.
Jenkins
waives and/or withdraws any and all actions, claims, complaints,
appeals, grievances, and proceedings of whatever nature in whatever
forum, including but not limited to, filing a civil action in United
States District Court and/or pursuing Privacy/HIPAA issues,
against the Agency, its officials, agents and/or employees, in their
personal as well as their official capacities, which are now or
hereafter may be asserted by the Complainant or on the
Complainant’s behalf, based on facts in existence as of the date of
Complainant’s execution of this Settlement Agreement, including
but not limited to, claims of discrimination based upon reprisal
3

and/or disability, regarding a hostile work environment, with the
exception of any claims that may arise by reason of alleged breach
of any terms of this Settlement Agreement.
Id. ¶ 2. Mr. Jenkins also agreed “to tender his resignation . . . . effective
immediately . . . [and] not seek nor accept employment with the VA Illiana
Heath Care System.” Id. ¶¶ 3 & 8. In exchange for Mr. Jenkins’ concessions,
the agency paid him $35,000, agreed to provide him with the forms necessary
to withdraw the funds from his Thrift Savings Plan (“TSP”) and provide outside
employer inquiries with his dates of service, position and salary. Id. ¶¶ 5-7.
If Mr. Jenkins believed the settlement agreement was breached, the agency
provided a resource and mechanism to assist him in compelling the agency to
abide by the terms of the agreement. Id. ¶ 15. Mr. Jenkins and the agency
representative acknowledged the “Settlement Agreement has been entered into
knowingly and voluntarily by all the parties.” Id. ¶ 11.
On February 19, 2016, Mr. Jenkins’ claim that the settlement agreement
had been breach was received by the Office of Resolution Management (“ORM”)
of the VA. (Docket 22-4 at p. 1 ¶ 3). Mr. Jenkins’ claimed that because his
disclosure of “several million dollars in H.I.P.[A.]A. violations” which he
“reported to the VA Office of the Inspector General,” the VA would not hire him
in the VA system. 3 Id. After discussing the terms of the settlement
agreement, the ORM concluded the agency had not breached the settlement
According to VA documentation, Mr. Jenkins claimed on November 4,
2014, that he was not hired at the VA Black Hills Health Care System at Ft.
Meade, South Dakota. (Docket 1-1 at p. 2). Mr. Jenkins refutes this claim as
he was hired on a part-time basis at the Ft. Meade VA on November 4, 2014.
(Docket 26-1). Mr. Jenkins states “[t]he Acceptance Letter, and 90 Day
Performance Appraisal . . . Demonstrate [he] was Hired by The Black Hills V.A.”
(Docket 26 at p. 1).
4
3

agreement. Id. at p. 4. That decision was entered on April 6, 2016. Id. at
p. 1. The ORM decision advised Mr. Jenkins that some of his alleged new
claims “exceed the parameters of the settlement agreement. . . . [And] these
claims more appropriately [are] raised as subsequent acts of discrimination.”
Id. at p. 3. With that ruling, a new EEOC case number was assigned. Id.
Because Mr. Jenkins failed to file a formal complaint on these issues, ORM
administratively closed the file on February 8, 2016. Id.
Mr. Jenkins appealed the ORM decision to the Office of Federal
Operations (“OFO”) of the EEOC. (Docket 22-5). On October 11, 2016, OFO
affirmed the ORM decision. Id. at p. 4. Mr. Jenkins timely filed a request for
reconsideration of the OFO decision. (Docket 1-1 at p. 1). On February 16,
2017, OFO denied Mr. Jenkins’ request to reconsider the earlier decision. Id.
at p. 2. Mr. Jenkins was advised he had 90 days to appeal the OFO decision
to the district court. Id. Mr. Jenkins timely filed his complaint in this court.
(Docket 1).
ANALYSIS
Defendant moves to dismiss plaintiff’s complaint pursuant to Fed. R. Civ.
P. 12(b)(6). Rule 12(b)(6) provides for dismissal if the plaintiff fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating
the defendant’s Rule 12(b)(6) motion, the court accepts as true all of the factual
allegations contained in plaintiff’s complaint and grants all reasonable
inferences in favor of plaintiff as the nonmoving party. Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
5

that is plausible on its face.’ ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009). See also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the
court must review “a Rule 12(b)(6) motion to dismiss for failure to state a claim,
accepting the facts alleged in the complaint as true and granting all reasonable
inferences in favor of the plaintiff, the nonmoving party.”) (brackets omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do[.]” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). See
Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (quoting Twombly, 550 U.S. at
555). “[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Iqbal, 556 U.S. at 679. Courts are not required to accept
as true legal conclusions “couched as . . . factual allegation[s]” in the
complaint. Id. at 678.
“When ruling on a motion to dismiss under Rule[] 12(b)(6) . . . a district
court generally may not consider materials outside the pleadings. . . . It may,
however, consider some public records, materials that do not contradict the
complaint, or materials that are necessarily embraced by the pleadings.”
Noble Systems Corp. v. Alorica Central, LLC, 543 F.3d 978, 982 (8th Cir. 2008)
(internal citation and quotation marks omitted). The court may also consider
matters in the public record of which the court may take judicial notice.
6

Tellabs, Inc. v. Makor Issues and Rights, LTD., 551 U.S. 308, 322 (2007).
“Jurisdictional issues, whether they involve questions of law or of fact, are for
the court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir.
1990).
In applying these principles, the court must construe plaintiff’s pro se
complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
This means “that if the essence of an allegation is discernible, even though it is
not pleaded with legal nicety, then the district court should construe the
complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir.
2014) (internal quotation marks omitted). The complaint “still must allege
sufficient facts to support the claims advanced.” Stone, 364 F.3d at 914.
Prior to the execution of the settlement agreement, Mr. Jenkins alluded
to millions of dollars having been expended because of H.I.P.A.A. violations
which he reported to the Office of the Inspector General. (Docket 22-4 at p. 1).
Mr. Jenkins intended to hold the VA responsible for these violations. Id. He
confirmed these earlier complaints in filings in this case. (Dockets 23 at
pp. 3-4; 23-1 at pp. 1-4 & 7-8; 25 at pp. 1-2; 26 at p. 1; and 31 at p. 2).
Those claims were resolved in the 2010 settlement agreement. (Docket 22-3).
Simply restating those claims in the present litigation does not create a new
avenue for Mr. Jenkins to re-assert his previous whistleblower claim. (Docket

7

1 at p. 3). Plaintiff fails to state a claim upon which relief may be granted
relating to these allegations.
Similarly, Mr. Jenkins’ complaint asserts he was subject to “reprisals for
EEOC complaints and previous federal court case and ‘protected union
activity.” Id. Neither the complaint nor Mr. Jenkins’ subsequent submissions
in resistance to defendant’s motion to dismiss provide any factual basis
alleging conduct or substantial injury after the 2010 settlement agreement.
Again, these claims were resolved in the 2010 agreement. (Docket 22-3).
Plaintiff fails to state a claim upon which relief may be granted.
Mr. Jenkins’ complaint alleges the VA failed or refused to process his
disability claim. (Docket 1 at p. 1). Contrary to this allegation, Mr. Jenkins
submitted for the court’s consideration documentation showing that the VA is,
in fact, processing his disability claim. (Dockets 27-3 and 28 at pp. 2-3). By
a memo from the Office of United States Senator John Thune, Mr. Jenkins was
advised that “the Board of Veterans Appeals . . . confirmed that your appeal is
awaiting scheduling of a Board hearing by the Regional Office in Sioux Falls.
BVA officials have also acknowledged that the Board is currently addressing
appeals with a docket date of December 2013 and your appeal carries a docket
date of October 2016.” (Docket 28 at p. 2). While a three-year delay in
processing a disability claim for a veteran seems unjust, Mr. Jenkins identifies
no constitutional, federal law or regulatory claim which could serve as an

8

avenue for relief in this district court case. The complaint fails to state a claim
upon which relief may be granted.
Mr. Jenkins’ complaint asserts he was “exposed to identity theft.”
(Docket 1 at p. 3). The background for this claim is premised on an undated
notice Mr. Jenkins received from the United States Office of Personnel
Management (“OPM”). (Docket 23-1 at p. 11). The OPM notice indicates Mr.
Jenkins’ “name, Social Security number, address, date and place of birth” and
other information may have been compromised. Id. In a handwritten
comment on the notice, Mr. Jenkins states “my informational [sic] is stolen
2 times applying for V.A. and TSA.” Id. Mr. Jenkins inferentially implies
“that the theft [of his] Information creates a substantial risk that [he] will suffer
identity theft.” In re SuperValu, Inc., 870 F.3d 763, 770 (8th Cir. 2017).
“Article III of the Constitution limits the jurisdiction of the federal courts
to cases or controversies.” Id. at 767–68 (citing Spokeo, Inc. v. Robins,
___ U.S. ___, 136 S. Ct. 1540, 1547, (2016)). “A plaintiff invoking the
jurisdiction of the court must demonstrate standing to sue by showing that [he]
has suffered an injury in fact that is fairly traceable to the defendant’s conduct
and that is likely to be redressed by the relief [he] seeks.” Id. at 768 (citing
Spokeo, Inc., 136 S. Ct. at 1547). “To establish an injury in fact, a plaintiff
must show that [his] injury is “ ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’ ” Id. (citing Spokeo, Inc., 136 S.
Ct. at 1548) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
9

“An injury is fairly traceable if the plaintiff shows ‘a causal connection between
the injury and the conduct complained of’ that is ‘not . . . th[e] result [of] the
independent action of some third party not before the court.’ ” Id. at 768
(citing Lujan, 504 U.S. at 560) (alterations in original) (internal quotation
omitted).
Because Mr. Jenkins has “not alleged a substantial risk of future identity
theft,” he has not articulated any loss “against this speculative theft” which
would “create an injury.” Id. at 771. “[T]he complaint has not sufficiently
alleged a substantial risk of identity theft, and plaintiff[‘s] allegations of future
injury do not support standing in this case.” Id. at 771-72. The complaint
fails to articulate sufficient facts to provide Mr. Jenkins with standing and the
court with Article III jurisdiction. In re SuperValu, Inc., supra; see also
Braitberg v. Charter Communications, Inc., 836 F.3d 925, 930 (8th Cir. 2016)
(plaintiff “has not alleged an injury in fact as required by Article III. His
complaint asserts ‘a bare procedural violation, divorced from any concrete
harm.’ ”) (citing Spokeo, Inc., 136 S. Ct. at 1549).
The complaint makes a general declaration of “Insurance Fraud by V.A.”
(Docket 1 at p. 3). Without more, the complaint fails to “allege sufficient facts
to support the claim[] advanced.” Stone, 364 F.3d at 914.
Mr. Jenkins’ submissions contain other generalized statements that the
VA violated his rights over the course of the past several years. None of those
generalizations “allege sufficient facts to support the claims advanced.” Id.
10

ORDER
Based on the above analysis, it is
ORDERED that defendant’s motion to dismiss (Docket 20) is granted.
IT IS FURTHER ORDERED that plaintiff’s requests (Dockets 26 & 27) are
denied as moot.
IT IS FURTHER ORDERED that the complaint (Docket 1) is dismissed
without prejudice.
Dated August 29, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

11