Ellis v. Department of Veterans Affairs et al

Filing 37

ORDER overruling objections and adopting 28 Report and Recommendation. Order granting 15 Motion to Dismiss by United States of America. Pltf's claims are dismissed in their entirety, for lack of jurisdiction. All other pending motions not addressed in this order are denied as moot, without prejudice to reassert. The Clerk is directed to close this case. Signed by Judge Ron Clark on 2/14/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
RICHARD HOWARD ELLIS,
Plaintiff,
v.
DEPARTMENT OF VETERANS
AFFAIRS, et al.,
Defendants.

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CIVIL ACTION NO. 1:15-CV-227

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
The Court referred this matter to United States Magistrate Judge Keith F. Giblin for
consideration and recommended disposition of case-dispositive pretrial motions. On December 1,
2016, Judge Giblin issued a report recommending that the Court grant the defendant United States
of America’s motion to dismiss and dismiss the plaintiff’s claims in their entirety, without
prejudice, for lack of jurisdiction based on the failure to exhaust administrative remedies. See
Report and Recommendation (Doc. No. 28).
Citing health issues, the plaintiff requested two extensions of time to file objections to the
magistrate judge’s report. The magistrate judge granted those extensions of time. See Orders (Doc.
No. 30, 34).
On February 2, 2017, the Clerk received the plaintiff’s Objections and Request for Further
Extension (Doc. No. 36). The plaintiff, Richard H. Ellis, objects to Judge Giblin’s recommended
disposition by contending that (1) his complaint is valid, (2) he has submitted records and evidence
that wrongdoing occurred, (3) he requested a remedy to representatives of the defendant[s], (4) the

defendant failed to submit his requests to the appropriate agency rather than return them to plaintiff
with instructions, and (5) he can prove plausible facts supporting his claim. The plaintiff also
argues that he was not advised by the Department of Veterans Affairs (VA) how to properly
proceed with his claim and the VA should have routed his claims to the Office of General Counsel.
He also generally re-alleges his claims that he was subjected to malicious prosecution, false
statements, medical malpractice, and refusal to render aid at the hands of the VA. He appears to
acknowledge that he failed to submit the proper documentation required to exhaust his
administrative remedies before filing suit in federal court, but states that he has since “submitted
Tort Claim Form 95 to the proper agency, yet expects it to be declined because of statute of
limitations arguments, and therefore feel [sic] that this case should proceed.”
In accordance with 28 U.S.C. § 636(b)(1), the Court conducted a de novo review of the
magistrate judge’s findings, plaintiff’s objections, the record, and the applicable law in this
proceeding. After review, the Court finds that Judge Giblin’s findings and recommendations should
be accepted. Plaintiff has not offered any argument or evidence indicating that he did in fact
exhaust his administrative remedies as required before filing suit against the VA in federal district
court. As explained in Judge Giblin’s report, Mr. Ellis’ purported causes of action against the
federal defendants all sound in tort and, therefore, the Federal Tort Claims Act (FTCA) is the
exclusive remedy for his suit against the VA and its federal employees. See Report, at p. 6 (citing
Caldwell v. Klinker, 646 F. App’x 842, 846 (11th Cir. 2006)(per curiam)). Ellis’ objections again
acknowledge that his claims are tort-based, and there remains no evidence that he presented a
proper claim to the appropriate agency, much less that his claim was finally denied by the agency
in writing. See 28 U.S.C. § 2675(a); Barber v. United States, 642 F. App’x 411, 414 (5th Cir.
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2016)(per curiam)(requiring affirmative evidence of the VA’s actual receipt of the necessary form
or other writing setting forth the required information under the regulations). His objections only
support the fact that to date there is no denial from the appropriate agency, which is a prerequisite
to suit.
Because it is well-settled that the requirement of filing an administrative claim is
jurisdictional and may not be waived, the Court lacks jurisdiction to consider Mr. Ellis’ tort claims
against the defendants. See McAfee v. Fifth Circuit Judges, 884 F.2d 221, 222-23 (5th Cir.
1989)(per curiam). The Court must, therefore, dismiss this case for lack of subject matter
jurisdiction as recommended by the magistrate judge.
As for the plaintiff’s general request that he be granted another extension to “adequately
address these issues surrounding this case,” the Court finds that any extension would be futile. The
fact remains that Mr. Ellis did not exhaust his administrative remedies prior to filing suit and,
absent evidence that this has been remedied, the Court lacks jurisdiction. No number of
extensions can cure this jurisdictional issue, and the Court is not inclined to keep this matter
pending on the docket indefinitely while Mr. Ellis attempts to save his claims. The undersigned
recognizes the plaintiff’s representation that he is suffering from a number of health issues, but
the magistrate judge has already afforded much leniency in extending deadlines for Mr. Ellis to
submit his filings. Judge Giblin’s recommendation has been ripe for this Court’s review for
almost two (2) months. The Court therefore denies the plaintiff’s request that he be allowed
another 150 days to respond to the recommended disposition.
The Court therefore ORDERS that the report and recommendation (Doc. No. 28) is
ADOPTED.

Plaintiff’s objections (Doc. No. 36) are OVERRULED. The Court further
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ORDERS that the United States’ Motion to Dismiss (Doc. No. 15) is GRANTED. Plaintiff’s
claims are DISMISSED in their entirety, for lack of jurisdiction. All other pending motions not
addressed in this order are DENIED as MOOT, without prejudice to reassert. The Clerk is directed
to CLOSE this case.

So Ordered and Signed
Feb 14, 2017

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