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BARNES v. U.S.

April 12, 2004.

JOHN P. BARNES, Plaintiff,
v.
U.S., DEPARTMENT OF VETERANS AFFAIRS, TOGO D. WEST, JR., BROOKLYN VETERANS AFFAIRS MEDICAL CENTER, Defendant.



The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge

OPINION & ORDER

I. Introduction

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.

  II. Background

  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 incarcerated. (Id.).

  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., exh. B).

  III. Analysis

  A. Federal Tort Claims Act

  1. Proper Defendants

  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 ...


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