Briscoe v. U.S. Dep't of Veterans Affairs
Decision Date | 28 April 2014 |
Docket Number | 14-CV-1771(SJF)(GRB) |
Court | U.S. District Court — Eastern District of New York |
Parties | ROBERT V. BRISCOE, Plaintiff, v. U.S. DEPARTMENT OF VETERANS AFFAIRS, UNITED STATES ARMY & ARMED FORCES, U.S. DVA MEDICAL CENTER NORTHPORT, U.S. DEPARTMENT OF DEFENSE, Defendants. |
On March 18, 2014, pro se plaintiff Robert V. Briscoe ("plaintiff") filed: (1) a complaint against defendants U.S. Department of Veterans Affairs ("the VA"), United States Army and Armed Forces ("the Army"), the U.S. [VA] Medical Center Northport ("the VA Medical Center") and the U.S. Department of Defense ("DOD"), asserting claims seeking damages for medical malpractice and wrongful death concerning the death of his father, Robert B. Briscoe, in 1988, while he was "under the care of the [VA]" at "the VA Medical Center in Northport, N.Y.," (Compl. at ¶ III.A-B), which are liberally construed to be tort claims against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b) and 2671 et seq.1;and (2) an application to proceed in forma pauperis. Since plaintiff's financial status, as set forth in his declaration in support of his application to proceed in forma pauperis, qualifies him to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), his application to proceed in forma pauperis is granted. However, for the reasons set forth below, the complaint is sua sponte dismissed without prejudice pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.
Federal courts are courts of limited jurisdiction, see Gunn v. Minton, — U.S. —, 133 S. Ct. 1059, 1064, 185 L. Ed. 2d 72 (2013); Mims v. Arrow Financial Services, LLC, — U.S. —, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) ( ); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) ( ) Lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by a party or by the courtywa sponte. See Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641, 648, 181 L. Ed. 2d 619 (2012): see also Sebelius v. Auburn Regional Medical Center, — U.S. —, 133 S. Ct. 817, 824, 184 L. Ed. 2d 627 (2013) (). If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006): Fracasse v. People's United Bank, — F.3d —, 2014 WL 1243811, at * 2 (2d Cir. Mar. 27, 2014): Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62-3 (2d Cir. 2009).
It is axiomatic that district courts are required to read pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285,50 L. Ed. 2d 251 (1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they suggest." Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v. County of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010); see also Ashcroft v. Iqbal 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
"The United States, as sovereign, is immune from suit save as it consents to be sued. . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit" Hercules Inc. v. United States, 516 U.S. 417, 422-23, 116 S. Ct. 981, 134 L.Ed. 2d 47 (1996) (quotations, brackets and citation omitted); see also AmBase Corp. v. United States, 731 F.3d 109, 118 (2d Cir. 2013) (accord). In Long Island Radio Co. v. National Labor Relations Board, 841 F.2d 474, 477 (2d Cir. 1988), the Second Circuit held:
Id. (quotations, brackets and citations omitted); see also Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994) (); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991) ()
"The FTCA * * * was designed primarily to remove the sovereign immunity of the United States from suits in tort[,]" Levin v. United States, — U.S. —, 133 S. Ct. 1224, 1228, 185 L. Ed. 2d 343 (2013) (quotations and citation omitted), and "gives federal district courts exclusivejurisdiction over claims against the United States for '* * * personal injury or death caused by the negligent or wrongful act or omission' of federal employees acting within the scope of their employment." Id. (quoting 28 U.S.C. § 1346(b)(1)); see also Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 80 (2d Cir. 2005) . Specifically, the FTCA waives the United States's sovereign immunity for, inter alia, medical malpractice claims based upon negligence, see Levin, — U.S. —, 133 S. Ct. at 1231 (), and wrongful death claims, see Davis v. United States, 143 F. App'x 371, 372 (2d Cir. July 25, 2005) (summary order) ("FTCA permits individuals to file, inter alia, wrongful death tort claims against the United States based on the acts of a government employee who is acting within the scope of his or her employment").
The FTCA's waiver of sovereign immunity, however, "operates subject to numerous conditions, each of which must be satisfied for a court to exercise jurisdiction." Adeleke v. United States, 355 F.3d 144, 153 (2d Cir, 2004); see also In re World Trade Center Disaster Site Litigation, 521 F.3d 169, 189 (2d Cir. 2008) (accord); Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) () "One such condition is that a plaintiff must first file an administrative claim with the appropriate federal agency before suingfor relief in federal court." Adeleke, 355 F.3d at 153; see also McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993) (); Celestine, 403 F.3d at 82 (); Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) () Specifically, the FTCA provides, in relevant part:
* * *"
28 U.S.C. § 2675(a).2 This exhaustion requirement "is jurisdictional and cannot be waived[,]" Celestine, 403 F.3d at 82, and "applies equally to litigants with counsel and to those...
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