United States District Court, D. Delaware
Alfonso Douglas Kraft, Smyrna, Delaware; Pro Se Plaintiff.
C. Weiss, Acting United States Attorney and Laura D. Hatcher,
Assistant United States Attorney, District of Delaware,
Wilmington, Delaware, Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
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.
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.
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
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)
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.
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.
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.
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).
'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 ...