Richman v. Veterans Affairs Hospital

Filing 9

ORDER adopting Report and Recommendations 8 . The Defendant's Motion to Dismiss is GRANTED. Signed by Judge Jon Phipps McCalla on 8/21/18. (Sullivan, Daniel) (Main Document 9 replaced on 8/21/2018) (Sullivan, Daniel).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELROY RICHMAN,
Plaintiff,
v.
VETERANS AFFAIRS HOSPITAL,
Defendant.

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Case No. 2:18-cv-2306-JPM-dkv

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND GRANTING THE MOTION TO DISMISS

Before the Court is the Report and Recommendation filed by U.S. Magistrate Judge
Diane K. Vescovo on July 26, 2018. (ECF No. 8.) In the Report and Recommendation, the
Magistrate Judge considers a Motion to Dismiss filed by Defendant Veterans Affairs Hospital
(“the VA Hospital”). (ECF No. 2.) For the reasons set forth below, the Court ADOPTS the
Report and Recommendation in its entirety. Accordingly, the VA Hospital’s Motion to
Dismiss is GRANTED and Plaintiff Elroy Richman’s complaint is DISMISSED.
In his complaint, Richman alleges medical malpractice, willful deception, the
intentional infliction of emotional distress, and the failure to award appropriate disability
benefits. (ECF No. 1-1.) Under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., this
Court cannot consider personal injury tort claims against the federal government until a
plaintiff exhausts the relevant administrative remedies. See McNeil v. United States, 508 U.S.
106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.”). In the Report and Recommendation, the

Magistrate Judge finds that “Richman has not provided any evidence… that he filed an
administrative claim against [the] VA Hospital,” and thus has not yet exhausted his
administrative remedies. (ECF No. 2 at PageID 23.) Accordingly, the Magistrate Judge
recommends that the “VA Hospital’s motion to dismiss be granted and that Richman’s
complaint be dismissed in its entirety for lack of subject matter jurisdiction.” (Id.)
“Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2). Richman has not filed any objections to the
Report and Recommendation, and the time for filing objections expired on August 9, 2018.
See Fed. R. Civ. P. 5(b)(2), 6(d), 72(b)(2).
“When no timely objection is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.
72(b) advisory committee note. On clear-error review of the Magistrate Judge’s Report and
Recommendation, the Court hereby ADOPTS the Report and Recommendation in its entirety.
Accordingly, the VA Hospital’s Motion to Dismiss is GRANTED, and Richman’s
complaint is therefore DISMISSED for lack of subject matter jurisdiction.
IT IS SO ORDERED, this 21st day of August, 2018.
/s Jon McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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