Stephens v. U.S. Department of Veterans Affairs

Filing 67

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 63 Memorandum and Recommendations is hereby ADOPTED re: 58 Defendant's MOTION to Dismiss for Lack of Subject Matter Jurisdiction is granted and Plaintiffs current claims are dismissed for lac k of subject matter jurisdiction. ORDERED that Plaintiff's request for leave to file the Proposed Second Amended Complaint attached to his 64 objections is DENIED. It is further ORDERED that Plaintiff is GRANTED leave to file a second amended complaint which is consistent with this Court's order dismissing all claims involving questions of law or fact related to a benefits decision such as the surgical procedures provided to Plaintiff. Plaintiff may file a second amended complaint ba sed only on his allegation that the process for obtaining his consent to the surgeries violated the standard of care. The second amended complaint shall not contain any allegation of negligence or seek to recover for the failure to provide a particul ar surgical procedure because all such claims involve questions of law or fact related to a benefit decision, are barred by the Veterans Judicial Review Act, and have been dismissed for lack of subject matter jurisdiction. Plaintiff shall file the second amended complaint on or before July 23, 2021. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

July 09, 2021
Nathan Ochsner, Clerk

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JON STEPHENS,

Plaintiff,

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V.
THE UNITED STATES

Defendants.

CIVIL ACTION No.

4: 18-cv-1878

ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION

On June 9, 2021 the Magistrate Judge issued a Memorandum and Recommendation (ECF
No. 63). Plaintiff filed timely objections to the Memorandum and Recommendation (ECF No. 64).
Plaintiff concedes in his objections that any challenge to the VA's failure to perform a cosmetic
procedure during his surgery is barred by the Veterans Judicial Review Act. As part of his objection
to the Magistrate Judge's Memorandum and Recommendation, Plaintiff seeks leave to file a
Proposed Second Amended Complaint. Plaintiff's Proposed Second Amended Complaint states that
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Plaintiff does not contend he was entitled to cosmetic surgery, but rather that his consent to the
surgeries performed at .the VA hospital was based on false representations made by VA staff (ECF
No. 65 at 5). However, the proposed Second Amended Complaint continues to include multiple
allegations regarding the VA's failure to provide cosmetic surgery. The United States filed a
response to Plaintiffsi objections and opposes the Plaintiffs request for leave to file a Second
Amended Complaint (ECF No. 66).
Having reviewed Plaintiffs objections and Defendant's response, the Court is ofthe opinion
that the Magistrate Judge's Memorandum and Recommendation should be adopted by this Court.
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It is therefore ORDERED that the Magistrate Judge's Memorandum and Recommendation is

hereby ADOPTED and Plaintiffs current claims are dismissed for lack of subject matter
jurisdiction.
It is further ORDERED that Plaintiff's request for leave to file the Proposed Second

Amended Complaint attached to his objections is DENIED.
It is further ORDERED that Plaintiff is GRANTED leave to file a second amended

complaint which is consistent with this Court's order dismissing all claims involving questions of

law or fact related to a benefits decision such as the surgical procedures provided to Plaintiff.
Plaintiff may file a second amended complaint based only on his allegation that the process for
obtaining his consent to the surgeries violated the standard of care. The second amended complaint
shall not contain any allegation of negligence or seek to recover for the failure to provide a particular
surgical procedure because all such claims involve questions of law or fact related to a benefit
decision, are barred by the Veterans Judicial Review Act, and have been dismissed for lack of
subject matter jurisdiction. Plaintiff shall file the second amended complaint on or before July 23,
2021.

SIGNED at Houston, Texas this

<f-lh day of July, 2021.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE