Gonzalez v. United States

• Decision Date: 30 September 2012
• Docket Number: 12–1208.,Civil Nos. 09–2200 (DRD), 12–1201
• Citation: 898 F.Supp.2d 410
• Parties: Daniel ROSARIO GONZALEZ, Juan Velez Padilla, Plaintiff(s), v. UNITED STATES of America, et al., Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

898 F.Supp.2d 410

Daniel ROSARIO GONZALEZ, Juan Velez Padilla, Plaintiff(s),

v.UNITED STATES of America, et al., Defendant(s).

Civil Nos. 09–2200 (DRD), 12–1201, 12–1208.

United States District Court,

D. Puerto Rico.

Sept. 30, 2012.

Daniel Rosario Gonzalez, Bayamon, PR, pro se.

Juan Velez Padilla, Bayamon, PR, pro se.

Agnes I. Cordero, United States Attorneys Office, Roberto Sueiro–Del–Valle, Roberto Sueiro Del Valle LLM, Leila S. Castro–Moya, Freddie O. Torres–Gomez, San Juan, PR, Mayra Vanessa Estrella Perez–Valdivieso, Rovira–Rodriguez Law Offices, Coto Laurel, PR, for Defendants.

OMNIBUS OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are the following motions: (a) Motion for Summary Judgment; the Statement of Uncontested Material Facts; and the Memorandum of Law in Support of Motion for Summary Judgment, filed by the defendant United States of America (hereinafter the “defendant” or the “Government”), Docket No. 155; (b) Plaintiffs' Response to United States of America Memorandum in Support of Motion for Summary Judgment, Docket No. 160; (c) Plaintiffs' Response to United States' Motion to Dismiss, Docket No. 161; (d) Motion to Dismiss filed by Servicios de Salud en El Hogar y Hospicio San Lucas, Inc., Docket No. 276, and (e) Response to Defendant Servicios de Salud en El Hogar y Hospicio San Lucas, Inc., Docket No. 279 filed by plaintiffs. For the reasons set forth below, the Government's motion for summary judgment is granted.

Introduction

The instant action stems from several claims filed by plaintiffs Daniel Rosario González and Juan Vélez Padilla, (hereinfter “Plaintiffs” or “Messrs. Rosario and Vélez”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq. seeking damages from the United States for the wrongful death of Mr. David Rosario Rosado. Plaintiffs allege that Mr. David Rosario's death was the result of medical malpractice of the professionals in charge of Mr. David Rosario's medical care at the Veterans Administration Caribbean Health Center System in San Juan, Puerto Rico (“VA Hospital”). See Complaint, Docket No. 1. Plaintiffs also aver multiple claims for alleged constitutional violations, civil rights violations, loss of benefits and physical injuries. ¹

The record shows that Mr. David Rosario passed away on August 5, 2008. Id. and Docket No. 157–8. Thereafter, plaintiffs filed on or about thirty-seven additional FTCA claims between November 14, 2008 through October 26, 2009. See Docket No. 157–4.

On November 25, 2009, plaintiffs filed the instant action pro se. The record further shows that Mr. Daniel Rosario is the son of the deceased Mr. David Rosario. Mr. Vélez, however, has no blood kinship with the deceased Mr. David Rosario, or at least there is no evidence in the record to support said finding. As of this date, plaintiffs continue to appear pro se, notwithstanding that the Court has encouraged them to undertake legal representation due to the potential/complex issues involved in the case at bar, which can be seemed quite challenging to the Court to be handled by the pro se plaintiffs. After the filing of the instant action, plaintiffs filed seventy-three additional administrative claims under the FTCA from December 18, 2009 through March 22, 2011. See Docket No. 157–11.

Factual and Procedural Background

As stated above, the instant action was filed on November 25, 2009.² The Court finds that the following material facts are uncontested, and are set forth below for easy reference:

1. Mr. David Rosario Rosado was an 81 year old veteran who passed away on August 8, 2005 at the VA Hospital. See Docket No. 157–8, Ms. Ana M. Margarida Juliá's Unsworn Declaration under Penalty of Perjury, given on August 25, 2011.

2. Veteran David Rosario had been admitted at the VA Hospital on or about four times, to wit:

a. November 13, 2007 to February 8, 2008

b. February 12, 2008 to February 20, 2008

c. March 16, 2008 to April 11, 2008

d. April 29, 2008 to August 5, 2008. See Docket entries No. 157–8 and 160.

3. Veteran David Rosario suffered from diabetes, and from other chronic ailments. See Docket No. 158–1 and 158–4 (the Autopsy Report, which was performed on August 6, 2008).

4. On August 4, 2008, plaintiff Daniel Rosario–González filed four pro se cases: ³

a. Daniel Rosario–González v. United States, Civil No. 08–1836(RLA) was a medical malpractice action filed against the United States (VAMC) claiming $66,600,000.00 in damages (Docket No. 1). On October 17, 2008, the Court granted the United States Motion to Dismiss for failure to exhaust administrative remedies, and thus depriving the court of subject matter jurisdiction. (Docket No. 6).

b. Daniel Rosario–González v. Wilfredo Rosario–González, Gustavo Reyes, Iván Rosario–González, Zenaida Pulido and Edwin Rosario–González, Civil No. 08–1837(CCC) was mainly an action against plaintiff's brothers (Wilfredo, Iván and Edwin ⁴) for fraudulent transfer of monies in the amount of $166,087.00 deposited in bank accounts belonging to his father, David Rosario–Rosado, from June to July 2006; actions made under duress (Docket No. 1). The First Complaint as well as the Amended Complaint filed on February 24, 2009, claimed $66,600,000.00 in damages (Docket No. 25). On May 29, 2009, the Court dismissed the case without prejudice for lack of diversity jurisdiction under 28 U.S.C. § 1332 to be filed in the appropriate court of the Commonwealth of Puerto Rico. (Docket No. 54).

c. Daniel Rosario–González v. Servicios de Salud en el Hogar y Hospicio San Lucas, Civil No. 08–1838(RLA) was a medical malpractice action against the defendant claiming $66,600,000.00 in damages. On October 17, 2008, the court dismissed the case for lack of federal subject matter jurisdiction, and lacking diversity jurisdiction under 28 U.S.C. § 1332.

d. On October 23, 2008 Daniel Rosario–González, pro se, filed Civil No. 08–2213 (GAG/CVR) against Servicios de Salud en el Hogar y Hospicio San Lucas, Inc. claiming $66,600,000.00 in damages. On April 28, 2009 the case was dismissed for lack of subject matter jurisdiction. See Order entered on April 22, 2009, by the Hon. Gustavo A. Gelpí (Docket No. 109). However, on April 20, 2012, plaintiff acknowledged in his opposition to the United States Magistrate's Report and Recommendation that he was not bringing any claims against the Veterans Administration.

5. As stated above, plaintiff Daniel Rosario has filed thirty-seven administrative claims prior to the filing of the instant case, however, only one claim has been filed by plaintiff Vélez, that is, Claim No. 6. See Docket No. 157–4.

6. The record further shows that when plaintiffs filed the instant action, the Veterans Administration (“VA”) had not taken any action on the pending administrative claims presented by plaintiffs. According to the FTCA, a federal agency has six months to decide the administrative claim. When the federal agency does not issue a decision within the six month period, then the administrative claims are deemed denied. In the instant case, the VA denied the first thirty-two administrative claims, that is, from November 2008 to October 26, 2009, based on the fact of plaintiffs' legal action filed on November 25, 2009. See Docket No. 157–6, Declaration of Regional Counsel [of the Department of Veterans Affairs] Gary Slemmens, given on August 25, 2011. “Since the Plaintiff Daniel Rosario–González elected to file suit before the Federal District Court on November 25, 2009, by operation of law he deprived the Department of Veterans Affairs of authority to act on his administrative claims.” Id.

7. As to the claims filed on October 26, 2009, Claims No. 33–35, the same were not analyzed by the agency, as they were barred by the filing of the instant action on November 25, 2009. See Docket No. 157–12.

8. As to the claims filed after November 25, 2009, Claims No. 36–37, the same were not considered by the agency, as the filing of the action in the district court deprives the agency of administrative jurisdiction. “Once the claimant opts to file suit, the agency is divested of authority to consider a claim.” See Docket No. 157–12.

9. On February 10, 2012, Mr. Gary Slemmens, Regional Counsel of the Department of Veterans Affairs, sent a letter to plaintiff Daniel Rosario González, informing plaintiff that the claims filed on November 18, 2008 through October 26, 2009 were “denied as you have elected to pursue your litigative remedy.” See Docket No. 157–1. “Additionally, no reference is here made to administrative appeal process as that has been mooted by the litigation election.” Id. As to the advance payments requested by plaintiff Daniel Rosario, the agency denied them. “Your claims also request advance payment of $100,000.00 for each one of the claims received. Please be advised that the Office of Regional Counsel has no authority to provide an advance payment prior to complete investigation and administrative or litigative disposition of a claim.” Id.

10. The Court notes that plaintiffs are requesting the entry of a declaratory judgment and a damages award in excess of $4,000,000,000,000.00 plus costs and interest, and the reasonable amount of not less than $4,000,000,000,000.00 for compensatory damages. See Complaint, Docket No. 1, page 18.

Applicable Law and Discussion

A. The Motion to Dismiss Standard.

Rule 12(b) of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”) provides the grounds for dismissal of an action. Fed.R.Civ.P. 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction, and Rule 12(b)(6) provides that dismissal is warranted if the complaint fails to state a claim upon which relief can be granted. “Although co-defendants' motion to dismiss is filed under both Rule 12(b)(1) and 12(b)(6) the matter is distinctive since both motions are subject to similar threshold standards. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); Negrón–Gaztambide v....