The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
Pro se plaintiff John P. Barnes ("plaintiff" or "Barnes")
claims the United States of America ("United States") and the
Brooklyn Veterans Affairs Medical Center ("BVAMC") committed
medical malpractice and that the Department of Veterans Affairs
("DVA") wrongfully denied his claims for compensation for
military service-connected disabilities. Defendants United
States, the DVA, Togo G. West, Jr., and the BVAMC (collectively,
"defendants") have moved to dismiss the complaint. For the
reasons set forth below, the motion is GRANTED.
Plaintiff served in the United States Army from 1975 through
1979. (DiTeodoro Decl. para. 4). On August 25, 1992, plaintiff
filed his first application for service-connected disability
compensation based upon a diagnosis of testicular and lymph node
cancer. (Id. exh. A). Plaintiff later amended his claim to include his cancer treatment and two
cancer-related operations in 1992. (Id. exh. B). On May 18,
1994, the DVA denied plaintiff's service-connected compensation
claims based upon testicular cancer, probable mononucleosis,
alcohol abuse, and peptic ulcer cancer.*fn1 (Id. exh. C).
Plaintiff requested a hearing but failed to appear for two
scheduled hearings. (Id. exh. D).
On or about March 3, 1999, plaintiff filed a Standard Form 95,
Claim for Damage, Injury, or Death with the DVA's Office of
Regional Counsel. (Id. exh. H). In his administrative claim,
plaintiff alleged that his service in the United States Army
caused him to suffer from testicular and lymphatic cancer,
tinnitus, duodenal ulcers, Raynaud's phenomenon, scoliosis,
mononucleosis, tuberculosis, chronic pain, drug addiction, and
mental illness. (Id.). Plaintiff further alleged that the DVA
improperly prescribed psychiatric medication and negligently
discharged him from the hospital in April 1997, resulting in his
subsequent criminal conduct for which he is currently
In April 1999, plaintiff filed again for service-connected
compensation, claiming testicular and lymphatic cancer, tinnitus,
duodenal ulcers, Raynaud's phenomenon, scoliosis, chronic pain in
the spine, back, neck and stomach, mononucleosis, tuberculosis,
and mental illness. (Id. exh. E). On November 15, 1999, the DVA
denied plaintiff's claims relating to the cancer, duodenal
ulcers, and mononucleosis because these claims were previously
denied by the DVA in 1994 and plaintiff's right to appeal had
expired. (Id. exh. F). Plaintiff then amended his application
several more times to include compensation claims for malignant
tumors, non-Hodgkins lymphoma, subliminal hepatoxic effects, osteoarthritis,
gastroenteritis, gastritis, and the loss of his right testicle.
(Id. exh. G).
On January 28, 2000, the DVA denied plaintiff's administrative
claim, and noted that an investigation "into the facts and
circumstances surrounding this case has failed to reveal any
negligence on the part of the VA." (Id. exh. I). Plaintiff
filed an amended administrative claim in February 2000, (Id.
exh. J), and the DVA advised plaintiff that the amendments could
not be accepted since his underlying claims were previously
denied. (Id. exh. K).
On June 15, 2000, plaintiff commenced this action against
defendants. (Compl.). The complaint alleges medical malpractice,
that the "willful misconduct" classifications in 38 U.S.C. § 105
(2004) and 38 C.F.R. § 3.301 (2004) are unconstitutional, and
that the DVA wrongfully denied plaintiff's claim for
service-connected compensation. (Id.).
Plaintiff's remaining claims for service-connected benefits
were denied on July 5, 2002. (Letter from Kenneth A. Stahl,
Assistant U.S. Attorney, April 7, 2004, exh. A). His April 7,
2003 request for reconsideration is currently pending. (Id.,
A. Federal Tort Claims Act
The Federal Tort Claims Act ("FTCA") authorizes suits only
against the United States, 28 U.S.C. § 2680(a) (2000); Sprecher
v. Granber, 716 F.2d 968, 973 (2d Cir. 1983), and not against
federal agencies and federal officials acting in their official
capacities. 28 U.S.C. § 2679(a), (b)(1); Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991). Hence, the FTCA claims against the DVA and BVAMC are dismissed.
Plaintiff failed to specify the capacity in which Togo G. West,
Jr. ("West, Jr.") was sued. However, the totality of the
complaint and the course of proceedings show that plaintiff
intended to sue West, Jr. only in his official capacity. See
Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 88-89 (2d
Cir. 1991) (holding that courts "must look to the totality of the
complaint as well as the course of proceedings to determine
whether the defendants were provided with sufficient notice of
potential exposure to personal liability"). First, the cover page
to plaintiff's complaint lists the second defendant as
"Department of Veterans Affairs Togo D. West[,] Jr.[,] Sec."
(Compl.). Second, with the exception of the case caption and the
cover page, plaintiff does not mention West, Jr. anywhere else in
the complaint. Third, the Court's docket sheet indicates that
summonses were issued for the DVA and "Secretary Togo D. West,
Jr." While there is a process receipt and return form for the
DVA, the docket sheet does not reflect a corresponding process
receipt and ...