Levinson v. Richardson
Filing
6
MEMORANDUM DECISION that Plaintiff is to file an amended complaint within thirty (30) days of this Order curing the deficiencies set forth above. When the amended complaint is filed, the Court will consider Plaintiffs Motion for Official Service of Process. Signed by Judge Ted Stewart on 12/18/2012. (asp)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
RONALD M. LEVINSON,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
vs.
SCOTT P. RICHARDSON,
Case No. 2:12-CV-947 TS
Defendant.
This matter is before the Court for consideration of Plaintiff’s Motion for Official Service
of Process. Having reviewed the Motion, the Court finds that before the Motion can be granted,
certain deficiencies in Plaintiff’s Complaint must be corrected.
I. BACKGROUND
Plaintiff is proceeding pro se and in forma pauperis. Plaintiff has submitted a “Civil
Rights Complaint” form naming Dr. Scott P. Richardson as Defendant. Plaintiff’s allegations
arise from his claim that he lost the hearing in his left ear after a shoulder surgery conducted at
the Veterans Affairs Medical Center. Dr. Richardson was allegedly the anesthesiologist present
at the surgery and it is the anesthesia that Plaintiff blames for his hearing loss. Plaintiff brings
claims for negligence and medical malpractice.
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II. DISCUSSION
Plaintiff has filed a “Civil Rights Complaint” form. That form contains a section where
Plaintiff can identify whether he brings his claims pursuant to 42 U.S.C. § 1983, § 1985, or a
different code section. Plaintiff did not so identify.
The Court finds that Plaintiff has not stated a claim under either § 1983 or § 1985. To
state a claim under § 1983, Plaintiff “must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”1 A claim under § 1985(3) requires: “(1)
a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3)
an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.”2
Plaintiff has failed to allege a violation of his constitutional rights by a person acting
under color of state law. Further, Plaintiff has failed to allege any conspiracy to deprive him of
equal protection or equal privileges and immunities. Therefore, the Court finds that Plaintiff’s
Complaint fails to state a claim under either statute. If Plaintiff seeks to bring a claim under
either of these sections, additional allegations are required.
Though Plaintiff has not stated a claim under § 1983 or § 1985, it is not clear that
Plaintiff is actually seeking to bring a claim under either provision. Rather, the correspondence
filed with the Court on December 12, 2012,3 indicates that Plaintiff may be seeking to bring a
1
West v. Atkins, 487 U.S. 42, 48 (1988).
2
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).
3
Docket No. 5.
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claim under the Federal Tort Claims Act (“FTCA”). The FTCA permits
civil actions on claims against the United States, for money damages . . . for injury
or loss of property, or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope
of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.4
In his December 12, 2012 filing, Plaintiff attached a letter from the United States
Department of Veterans Affairs rejecting his administrative tort claim. That letter advises that, if
dissatisfied, Plaintiff may file a claim in accordance with the Federal Tort Claims Act. It appears
that this action is being brought pursuant to that letter.
If Plaintiff is seeking to bring a claim under the Federal Tort Claims Act, as it seems, his
Complaint remains deficient. As stated, Plaintiff names Dr. Richardson as the only Defendant to
this action. However, the proper defendant in a suit under the Federal Tort Claims Act is the
United States, not the Department of Veterans Affairs or its doctors.5 Therefore, if Plaintiff seeks
to bring a claim under the Federal Tort Claims Act he must amend his Complaint to name the
United States as the defendant in this action.
4
28 U.S.C. § 1346(b).
5
See 28 U.S.C. § 2679(a), (b)(1); 38 U.S.C. § 7316; see also Carr v. Veterans Admin.,
522 F.2d 1355, 1356 (5th Cir. 1975) (finding that Department of Veterans Affairs and its doctors
are not proper parties to a Federal Tort Claims Act suit).
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III. CONCLUSION
Based on the above, Plaintiff is hereby
ORDERED to file an amended complaint within thirty (30) days of this Order curing the
deficiencies set forth above. When the amended complaint is filed, the Court will consider
Plaintiff’s Motion for Official Service of Process.
DATED December 18, 2012.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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