Krueger v. United States
| Decision Date | 14 November 2017 |
| Docket Number | Case No. 17-cv-10574 |
| Parties | BRIAN KRUEGER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
On February 22, 2017, Plaintiff Brian Krueger filed a complaint against Defendant United States of America under the American's with Disabilities Act (ADA), 42 U.S.C. § 12131 and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq. Compl. ECF No. 1. The parties stipulated to extend Defendants answer deadline, and Plaintiff filed an amended complaint prior to Defendant filing its Motion to Dismiss. See ECF Nos. 8, 9. Defendant has not objected to the filing of the amended complaint and has asked that the Motion to Dismiss be treated as a response to the amended complaint. Reply at 1, ECF No. 14. Accordingly, the Amended Complaint will be construed as the operative complaint.
Plaintiff's amended complaint retains the FTCA claim, asserting one count of negligence by the Department of Veterans Affairs (VA) for improperly designating Plaintiff as a behavioral threat and interfering with his ability to receive healthcare at the VA. Am. Compl. at 14, ECF No. 8. Plaintiff's amended complaint omits the ADA claims and adds a claim under § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794, alleging that he was denied benefits to which he was entitled, was harassed and interfered with when he attempted to utilize other benefits, was retaliated against for continuing to seek access to benefits he was rightfully due, and was discriminated against on the basis of his disabilities. Am. Compl. at 13.
When adjudicating a motion to dismiss for failure to state a claim under rule 12(b)(6), the Court construe's the complaint in the non-movant's favor and accepts all of Plaintiff's factual allegations as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The facts set forth herein are derived from the allegations in Plaintiff's amended complaint.
Plaintiff is a distinguished, honorably discharged veteran of the United States military who specialized in the safekeeping and protection of generals, dignitaries, and other high level military VIPs in the Middle East. Am. Compl. at 2; Resp. at 1. As a result of his service Plaintiff suffers from severe Post-Traumatic Stress Disorder (PTSD) and Bi-Polar Disorder stemming from a head injury, as well as anxiety. Am. Compl. at 2. This case arises from a series of unfortunate, often hostile interactions between Plaintiff and the staff at the VA where he receives treatment for mental health, among other things. Id. at 3.
About fifteen years ago Plaintiff was homeless and enrolled in the HUD-VASH housing program, a collaborative program between HUD and VA which combines HUD housing vouchers with VA supportive services to help homeless veterans and their families find permanent housing. Through the HUD-VASH program Plaintiff was placed in a house in Saginaw. Id. His utilities were supposed to be paid on his behalf by the HUDVASH program. Id. After three months, no payments were forthcoming, his landlord allowed the utility payments to lapse, his power was shutoff during the winter, his pipes froze, and he lost all his food. Id. Despite repeatedly contacting the VA, the situation was never rectified. Id. The property waseventually demolished and Plaintiff was forced to vacate. Id. at 6. He was never relocated under the HUDVASH program to a new home. Id.
Plaintiff's repeated attempts to secure the benefits to which he was entitled under the HUDVASH program resulted in him being cited for malicious use of a telephone. Id. at 4-5. The VA also placed him on a behavioral "flag," designating him as a dangerous individual requiring supervision on VA premises, asked him to sign a "behavioral agreement." Id. at 6, 11; Resp. at 2-3. As a result, Plaintiff was required to be escorted by guards every time he visited the VA to receive treatment. The relationship between Plaintiff and the VA further deteriorated when he attempted to visit the VA Director, he was forced to sit on the ground by the guards, aggravating his back injury, and was ordered to leave the premises. Id. at 7. His phone calls to the VA resulted in the police showing up at his home, arresting him, and jailing him for three days. Id. at 7. He was cited again for malicious use of a telephone and placed on probation. Id. Continued attempts to contact the VA regarding his concerns about his benefits resulted in his probation being revoked and him being jailed for two weeks. Id. at 8.
After these incidents, Plaintiff began making great strides in his treatment under the direction of Dr. Elaine Carroll. Dr. Carroll wrote a scathing letter to Saginaw County District Court Judge A.T. Frank who was presiding over a drinking related charge against the Plaintiff, in which Dr. Carroll criticized the VA and the negative impact they had on Plaintiff's condition. Id. at 8. This caused retaliation by the VA against Plaintiff. Id. Plaintiff remained on the behavioral flag at the VA, and had additional restrictions placed on him. Id. at 9. He was no longer permitted to call the VA staff directly, but had to relay his requests directly to an answering machine. Id. The VA staff, including his guards and a therapist, also began to hassle Plaintiff about bringing his service dog, Kola, into the VA. Id. at 8. The therapist suggested that the dogwas a crutch and needed to be taken away. Id. at 9. Security staff told Plaintiff that Kola could not be inside, and "Kola was eventually prohibited by VA personnel from performing his tasks and from being allowed to sit next to the Plaintiff inside the VA." Id.
The situation reached a point of conflict when Plaintiff went to the VA Urgent-Care Center after he experienced chest pains. Id. at 10. There were no on-duty officers to escort Plaintiff, and he was thus unable to go into the emergency room through the main entrance. Id. at 10. Plaintiff honked his horn at the ambulance bay but received no response. Id. He called 911 and, at the direction of 911 operators, drove his truck into the ambulance bay to gain access to the emergency room. Id. Three officers then ran out and accosted Plaintiff demanding that he exit the vehicle but keep his dog inside the vehicle. Id. In order to perform his service function, Kola is at all times tethered to Plaintiff. Id. Thus, Plaintiff was unable to comply with the officers' instructions, which he tried to explain to them. Id. The confrontation triggered Plaintiff's PTSD, which caused "Kola to place himself between Plaintiff and the VA officers, pulling, nipping, and herding the Plaintiff away from the source of stress as he was trained to do." Id. The officers then demanded that Plaintiff "get off the fucking property or he would go to jail" and that his dog was "unruly and dangerous." Id.
The situation eventually de-escalated, the officers allowed him entry into the ER, but he was issued two citations while in his hospital bed, one for disturbing the peace on federal property and another for disorderly conduct. Id. at 11. Plaintiff was assigned a new social worker who challenged his behavioral flag, which was ultimately removed. Id. However, the officers' treatment of Plaintiff did not improve, he became fearful of receiving treatment at the VA, and wished to continue his treatment in a non-hostile environment. Id. Plaintiff sought to obtain care outside of the VA while retaining access to VA benefits through the Veteran's Choice Program.Id. at 12. Plaintiff had to seek permission from the local VA to take advantage of the program, but they did not allow him to apply. Id.
Most recently, in 2017, Plaintiff attempted to look into physical therapy treatment options at the VA, but wanted his concerns about retaliation and harassment addressed first. Id. at 12. His social worker contacted VA administration, who indicated that they would not discuss any concerns, and that they would only accept a written claim through their legal department. Id. at 12. Plaintiff now refuses to return to the VA unless it is unavoidable due to continuing obstructionism and harassment by the VA staff. Id. at 13.
Plaintiff alleges that the VA violated § 504 of the Rehabilitation Act. Id. He alleges they denied him access to the benefits to which he is entitled, such as the HUDVASH and Veterans Choice Programs. Id. He alleges the VA denied him these benefits on the basis of his disabilities and their associated accommodations, and in retaliation for his criticism of the VA and requests to secure the benefits to which he was entitled. Id. He also alleges that the VA interfered with his utilization of services he was receiving by imposing unreasonable and unwarranted restrictions on his ability to access the VA, creating a hostile environment, inhibiting his ability to seek emergency care, and inhibiting his use of this service dog. Id. at 13.
Plaintiff also alleges negligence by the VA under the FTCA. Id. at 14. He alleges the VA breached their duty to Plaintiff as a veteran and disabled individual by failing to allow Plaintiff to access the benefits to which he was entitled, and improperly imposing rules and requirements restricting his access to other VA services he was receiving. Id.
As a result of the alleged Rehabilitation Act and FTCA violations Plaintiff alleges he "sustained financial hardship, emotional distress, personal and professional growth opportunities,access to the benefits and services of programs to which he is entitled, and a loss of reputation in the community." Id. at 14.
Defendant's motion raises four principal arguments, of which two are jurisdictional arguments under 12(b)(1), one raises the statute of limitations, and one asserts failure to state a claim under 12(b)(6). Mot. at 1, ECF No. 9.
Defendant contends this Court lacks subject matter jurisdiction because 1) the Court of...
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