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Kraft v. Office of Chief Counsel Division of Veterans Affairs North Atlantic District-North

United States District Court, D. Delaware

February 9, 2018

ALFONSO DOUGLAS KRAFT, Plaintiff,
v.
OFFICE OF CHIEF COUNSEL DIVISION OF VETERANS AFFAIRS NORTH ATLANTIC DISTRICT-NORTH, Defendant.

          Alfonso Douglas Kraft, Smyrna, Delaware; Pro Se Plaintiff.

          David C. Weiss, Acting United States Attorney and Laura D. Hatcher, Assistant United States Attorney, District of Delaware, Wilmington, Delaware, Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff Alfonso Douglas Kraft, who proceeds pro se, filed this action on December 14, 2016. (D.I. 1). Before the Court is Defendant's motion to dismiss pursuant to Rule 12(b)(1) or, in the alternative, Rule 12(b)(6). (D.I. 6). Briefing on the matter is complete.

         BACKGROUND

         On February 2, 2016, Plaintiff filed an action in this Court against the VA Hospital in Elsmere, Delaware, Kraft v. VA Hosp., Civ. No. 16-060-SLR ("Civ. No. 16-060-SLR"). The Complaint was filed on a Standard Form 95 - Claim for Damage, Injury, or Death, a form used to lodge an administrative tort claim against a federal agency under the Federal Tort Claims Act. It alleged Plaintiff was injured on February 4, 2014, during his hospitalization at the VA Hospital. Civ. No. 16-060-SLR was dismissed on May 31, 2016, after Plaintiff failed to comply with an order to file a responsive brief to the VA Hospital's motion to dismiss. See Civ. No. 16-060-SLR at D.I. 7.

         Plaintiff commenced this action on December 14, 2016. (D.I. 1). While not clear, it appears that he once again raises a claim for his injuries as a result of the February 4, 2014 incident at the VA Hospital. Or, the Complaint could be construed as seeking veterans benefits. The Complaint states that venue is proper in this district "because the situation happened at VA Hospital, Elsmere, Delaware." (Id. at ¶ III. Venue). The Complaint states that Plaintiff has "all proof from Drs, also, V.P. Biden's Veteran Rep got my 100% along with Prof. Thomas Reed from Widener Law School who rep. me in all my case [sic] against the VA Hospital and proves that they are in the illegal area for not paying my bills and changing my VA Representative which tries to change my benefits illegally." (Id. at ¶ IV. Statement of Claim). There is no prayer for relief.

         In moving for dismissal, Defendant explains that as part of the Department of Justice's routine administrative procedures during the pendency of Civ. No. 16-060-SLR, a copy of the complaint was forwarded to its Civil Division, Torts Branch, Federal Tort Claims Act Staff, in Washington, D.C. Because the complaint was filed on a SF-95 form, it was treated as an administrative claim submitted to the incorrect agency, rather than the complaint Plaintiff had filed in federal court. As a result, the Torts Branch sent Plaintiff a letter on April 7, 2016 informing him that his "administrative tort claim dated February 1, 2016, which [he] submitted to the Department of Justice" had been forwarded to the appropriate agency. (D.I. 6 at Ex. B). Contemporaneously, by copy of that letter, the Torts Branch delivered the SF-95 to the Department of Veterans Affairs. (See Id.) The Department of Veterans Affairs received the letter on April 12, 2016. (See id. at Ex. A, ¶ 4, Ex. B). On May 3, 2016, the Department of Veterans Affairs acknowledged receipt of Plaintiff's administrative claim and advised Plaintiff that it would be processed under the provisions of the FTCA. (D.I. 8 at p.22)

         In early December 2016, Plaintiff contacted Paul Kranick, the Department of Veterans Affairs staff attorney who had been assigned to investigate Plaintiff's administrative claim and inquired about the status of his administrative claim. (Id. at Ex. A at ¶ 5). Plaintiff was advised that the administrative claim may not have been timely submitted to the VA, that if it had been more than six months since Plaintiff submitted the claim it could be deemed denied and he could file suit in court, or otherwise, the claim would be subject to further review and would be reviewed in sequential order. (Id. at ¶ 5). As noted, Plaintiff commenced this action on December 14, 2016.

         Defendant moves for dismissal (D.I. 6) pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, Rule 12(b)(6) on the grounds that: (1) the Court lacks subject matter jurisdiction if this is a claim seeking a review of denial of veterans benefits; and, in the alternative, (2) the claim is time-barred if this is a claim seeking to recover for injuries Plaintiff sustained while hospitalized at the VA Hospital in February 2014. Plaintiff opposes the motion and submitted a number of exhibits in support of his position.

         LEGAL STANDARDS

         Rule 12(b)(1) allows for dismissal where the court lacks subject matter jurisdiction over an action. Motions brought under Rule 12(b)(1) may raise either a facial or factual challenge to the court's jurisdiction. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Factual attacks allow the court to delve beyond the pleadings to determine if the evidence supports the court's subject matter jurisdiction. Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1997). The party asserting subject matter jurisdiction bears "the burden of proof that jurisdiction does in fact exist." Id.

         In reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94. A court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion maybe granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the complainant, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         "Though 'detailed factual allegations' are not required, a complaint must do more than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Daw's v. Abington Mem'l Hosp.,765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). I am "not required to credit bald assertions or legal conclusions improperly alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002). A complaint may not be dismissed, however, "for ...


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