Ransburg v. United States

• Decision Date: 17 November 2011
• Docket Number: No. CIV S-11-1558 KJM DAD PS,CIV S-11-1558 KJM DAD PS
• Parties: LESTER RANSBURG, III, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Eastern District of California

LESTER RANSBURG, III, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. CIV S-11-1558 KJM DAD PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: November 17, 2011.

ORDER

Plaintiff Lester Ransburg, a state prisoner, is proceeding pro se with this action. The case has been referred to the undersigned in accordance with Local Rule 72-302(c)(21) and 28 U.S.C. § 636(b)(1).

Plaintiff has filed an application for waiver of filing fees and costs, but has not submitted the application on a proper form. Plaintiff's application will therefore be denied, and plaintiff will be granted thirty days to submit a new application on the form provided with this order. Plaintiff is cautioned that the application form includes a section that must be completed by a correctional official, and the application must be accompanied by a certified copy of plaintiff's prison trust account statement, or institutional equivalent, that covers the six-month period immediately preceding the filing of this action.

Plaintiff is advised that a prisoner who brings a civil action in forma pauperis is required to pay the full amount of the filing fee in installments when funds are available in his prison trust account. An initial partial filing fee would be assessed if plaintiff had any deposits in his account or if he had a monthly balance in the account in any month during the six months preceding the filing of this case. Plaintiff's custodian would be ordered to collect fees from plaintiff's account and mail them to this court in accordance with 28 U.S.C. § 1915. The custodian would be required to continue sending available amounts until the $350.00 filing fee is paid in full, even if this case is closed before the full amount is paid.

Moreover, under 28 U.S.C. § 1915(e)(2), the court must dismiss the complaint at any time if the court determines that the pleading is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

The minimum requirements for a civil complaint in federal court are as follows:

A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649.

Here, plaintiff alleges as follows. Plaintiff was diagnosed with PTSD after participating in combat in Iraq and Afghanistan as a member of the United States Marine Corps. (Compl. (Doc. No. 1) at 1-2.) His PTSD rendered him unfit for active military duty. (Id. at 1.) Despite the severity of his PTSD and the determination that he was unfit for active duty, he was found to be only 10% disabled as a result of his PTSD. (Id. at 2.) Plaintiff argues that based on the severity of his PTSD he should have been found to be at least 50 % disabled, which would render him eligible for benefits such as healthcare and disability retirement pay pursuant to 10 U.S.C. § 1201. (Id. at 2, 8.) Plaintiff seeks, in part, an award of "money benefits" and "interest, costs and attorney's fees." (Id. at 18.)

The Ninth Circuit recently described the "labryinthe process" a veteran must undergo in applying for benefits from the Veterans Benefits Administration ("VBA"), explaining:

To apply for service-connected disability compensation benefits, a veteran must complete a 23-page application and submit it to the VA Regional Office in his area. In support of his application, the veteran must present evidence of his disability, service in the military that would entitle him to benefits, and a nexus between the disability and the military service. ^FN

FN. A veteran whose claim includes PTSD must additionally provide proof of a "stressor" event that occurred during his military service. See 38 C.F.R. § 3.304(f)(1) ("if the evidence establishes that the veteran engaged in combat ... and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary ... the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.") According to Ronald Aument, formerly Deputy Under Secretary for Benefits, this additional requirement renders PTSD-based disability benefit claims among the most difficult claims that the VA adjudicates. Specifically, the district court found that veterans often make mistakes completing their application forms and submitting evidence in support of their disability claims, and veterans suffering from PTSD had a particularly hard time furnishing the information properly. We note, however, that the VA recently amended its regulations "by liberalizing in some cases the evidentiary standard for establishing the required in-service stressor" to make it simpler for veterans to file claims for PTSD based on stressors "related to the veteran's fear of hostile military or terrorist activity." Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed.Reg. 39,843, 39,843 (July

13, 2010); see 38 C.F.R. § 3.304(f)(3) (2010).

The Veterans Claims Assistance Act, 38 U.S.C. § 5103, states that the VBA has a "duty to assist" veterans, requiring it to aid them in developing all evidence in support of their disability claims. Under the Act, upon receipt of a veteran's benefits claim application, a VBA Veterans Service Representative must contact the veteran and notify him of any further evidence that the VBA requires in order to adjudicate the claim. Id. The Veterans Service Representative must send the veteran a "duty to notify letter" detailing what information the veteran is expected to provide and what evidence the VBA will seek on his behalf under the Veterans Claims Assistance Act. In accordance with its "duty to assist" under the Act, the VBA must seek all government records that may pertain to the claim, including, inter alia, service personnel and medical records, VA medical records, and social security records. The "duty to assist" also requires the VBA to undertake "reasonableefforts" to acquire non-federal records, most notably private medical records identified by the veteran, if the veteran furnishes the VBA with a signed release form. Veterans have 60 days to respond to the "duty to notify letter" and to furnish the VBA with any applicable releases.

Section 5103A of the Veterans Claims Assistance Act states that the VBA's "duty to assist" also includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A. This medical examination is intended to confirm that a disability exists and to assess the medical implications of that disability in order to assist the claim adjudicator in determining the percentage the veteran will be considered disabled pursuant to the VBA's rating schedule. The VBA arranges and pays for Compensation and Pension Examinations, and the current wait time for such examinations is approximately 30-35 days. Individuals who have been treated for a recognized disability, such as PTSD, at a VHA medical facility may nonetheless be required to undergo a Compensation and Pension Examination. Moreover, a veteran who has been previously diagnosed by a physician at a VHA medical center as having PTSD, may nonetheless be diagnosed as not having PTSD during a VBA Compensation and Pension Examination.

Once all of the evidence in support of a veteran's service-connected disability compensation benefits claim has been gathered, a Rating Veterans Service Representative (known as a "rating specialist") decides whether the veteran's disability is service connected, and, if it is, assigns a rating to his claim.

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