Wiley v. Vachhani

Filing 20

MEMORANDUM AND ORDER Granting 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIS FLOYD WILEY,

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Plaintiff,
v.
BHUPATRAI G. VACHHANI, MD,
Defendant.

CIVIL ACTION NO. H-13-3712

MEMORANDUM AND ORDER
Pending is Defendant Bhupatrai G. Vachhani’s 12(b) Motion to
Dismiss (Document No. 6).

After carefully considering the motion,

response, reply, oral arguments, and the applicable law, the Court
concludes as follows.
Plaintiff Willis Floyd Wiley (“Plaintiff”), proceeding pro se,
alleges that Defendant Bhupatrai G. Vachhani, MD (“Defendant”) “was
hired

under

[(“SSA”)]”

to

Contract
perform

by
a

the

Social

medical

Security

evaluation

of

Administration
Plaintiff.1

Plaintiff, who is an amputee without one leg, contends that
Defendant “did not list the Plaintiff[’s] Physical disability on
said Exam which the Defendant was suppose to do,” and that this

1

Document No. 12 at 3.
The Court considers the factual
allegations in Plaintiff’s Response as amendments to the Complaint,
and includes them here as such. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (When ruling on a motion to dismiss a pro se
complaint, a district court is “required to look beyond the
[plaintiff’s] formal complaint and to consider as amendments to the
complaint those materials subsequently filed.”).

caused the SSA to disapprove Plaintiff’s claim for Supplemental
Security Income.2

Plaintiff sues the Defendant physician “in his

official capacity” purportedly under 42 U.S.C. § 1983 for violating
Title II of the Americans with Disabilities Act (“ADA”) and the
Fourteenth

Amendment,

inducement,

fraud,

fraudulent

fraud

concealment,

in

the

factum,

fraudulent

misrepresentation,

“making

false statements on federal Government Documents,” and “Deliberate
Indifference

to

the

Plaintiff[’s]

serious

medical

needs.”3

Plaintiff seeks money damages.4
Defendant

moves

to

dismiss

for

lack

jurisdiction and failure to state a claim.5

of

subject

matter

Plaintiff responds,

and moves to strike Defendant’s Motion to Dismiss.6
Under Federal Rule of Civil Procedure 12(b)(1), a party can
seek

dismissal

of

an

action

for

lack

of

subject

matter

jurisdiction. FED. R. CIV. P. 12(b)(1). The plaintiff, as the party
asserting jurisdiction, “constantly bears the burden of proof that
jurisdiction does in fact exist.”
F.3d 158, 161 (5th Cir. 2001).

Ramming v. United States, 281

“Ultimately, a motion to dismiss

for lack of subject matter jurisdiction should be granted only if

2

Document No. 12 at 5.

3

Document No. 1 at 1 (Compl.).

4

Id. at 4.

5

Document No. 6.

6

Document No. 12.
2

it appears certain that the plaintiff cannot prove any set of facts
in support of his claim that would entitle plaintiff to relief.”
Id.

A party makes a ‘facial attack’ on the court’s subject

matter jurisdiction where, as here, it files a Rule 12(b)(1)
motion

unaccompanied

by

supporting

evidence,

challenging

court’s jurisdiction based solely on the pleadings.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).

the

Paterson v.

In analyzing a

facial attack, “the trial court is required merely to look to the
sufficiency of the allegations in the complaint because they are
presumed to be true.”

Id.

If the allegations sufficiently allege

jurisdiction, the court must deny the motion.

Id.

Plaintiff brings suit under 42 U.S.C. § 1983 for violations of
the ADA and the Fourteenth Amendment. Section 1983 applies only to
state actors acting under color of state law.
834 F.2d 493, 495 (5th Cir. 1987).

See Lyons v. Sheetz,

Defendant is not a state actor,

but--Plaintiff alleges--a contractor with the Social Security
Administration, a federal agency, and Plaintiff therefore states no
cause of action upon which relief can be granted under Section
1983.

See Evans v. Ziporkin, 471 F. App’x 302, 303 (5th Cir. 2012)

(per curiam) (“Evan’s civil action against Sheryll Ziporkin, an
employee of the Social Security Administration acting under federal

3

law, was not proper under Section 1983, which only applies to state
actors acting under color of state law.”).7
The essence of Plaintiff’s complaint is that he was denied
social security benefits at least in part based upon Defendant’s
independent medical evaluation of Plaintiff.

Plaintiff’s recourse

for denial of social security benefits is to perfect an appeal in
the United States District Court in accordance with 42 U.S.C.
§ 405(g).
For the foregoing reasons, it is
ORDERED that Defendant Bhupatrai G. Vachhani’s 12(b) Motion to
Dismiss (Document No. 6) is GRANTED, and all of Plaintiff Willis
Floyd

Wiley’s

claims

against

Defendant

are

DISMISSED

without

prejudice for lack of jurisdiction.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED in Houston, Texas, this 28th day of April, 2014.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

7

To the extent that Plaintiff’s Complaint may be construed as
a direct claim against Defendant under Title II of the ADA, the
claim fails because Plaintiff does not allege facts to support a
claim that he was excluded from any state or local program, but
only that he was denied certain social security benefits that he
sought.
4