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United States District Court, E.D. New York

April 12, 2004.

JOHN P. BARNES, Plaintiff,

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


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 return form for West, Jr. individually. For these reasons, I find that plaintiff has sued West, Jr. only in his official capacity. Since federal officials acting in their official capacities are not amenable to suit under the FTCA, the claims against West, Jr. are dismissed.

  2. Statute of Limitations

  A tort claim against the United States is untimely unless made in writing to the appropriate federal agency within two (2) years after the claim accrues. 28 U.S.C. § 2401(b) (2000).*fn2 "The burden is on the plaintiff to both plead and prove compliance with the statutory requirements. In the absence of such compliance, a district court has no subject matter jurisdiction over the claim." Id.; see also Solomon v. United States, 566 F. Supp. 1033, 1035 (E.D.N.Y. 1982) ("Compliance with the statute of limitations under the FTCA is a jurisdictional prerequisite and noncompliance results in the claims being forever barred.").

  A medical malpractice claim under the FTCA accrues "when a plaintiff has discovered or, in the exercise of reasonable diligence, should have discovered, the existence, permanence and physical cause of the injury, regardless of whether he believes that he has an actionable claim." Rispoli v. United States, 576 F. Supp. 1398, 1402 (E.D.N.Y. 1983), aff'd, 779 F.2d 35 (2d Cir. 1985); see also United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). "In other words, a claim accrues when a claimant is `armed with the facts' of both the existence of his injury and its causation sufficient to alert him that a basis for investigating the possibility of malpractice exists." Rispoli, 576 F. Supp. at 402 (citing Kubrick, 444 U.S. at 123-24).

  3. Plaintiff's FTCA Claims

  a. Failure to Diagnose Cancer in 1992

  Plaintiff's complaint alleges that defendants negligently failed to perform tests, such as CAT scans or MRIs, in order to diagnose the extent of his cancer prior to his first surgery at the BVAMC on July 6, 1992. (Compl. at 2 para. 2A). Plaintiff was "armed with the facts" at the latest in 1994, the year of his third surgery, (DiTeodoro Decl. exhs. G, H), but failed to file an administrative complaint by 1996, two years after the latest conceivable accrual of this claim. Thus, his claim for failure to diagnose cancer is time-barred. See 28 U.S.C. § 2401(b). b. Failure to Timely and Properly Perform Second Surgery

  Plaintiff asserts that a bilateral retroperitoneal lymph node dissection, as part of his second surgery, was originally scheduled for July 15, 1992. (Compl. at 2 para. 2D). However, the second surgery was not performed until February 19, 1993, "by which time there was such extensive vascular and lymphatic invasion of [p]laintiff's cancer, due to the delay, that a . . . third surgery was required at Memorial Sloan Kettering Cancer Center." (Id.). Additionally, plaintiff contends that the failure to remove "a fourth tumor/mass that was detected during the second surgical procedure . . . necessitated the third surgery. . . ." (Id. para. 2E). Lastly, plaintiff claims that defendants failed to perform appropriate pre- and post-operative tests in 1992. (Id. para. 2F). Plaintiff's administrative complaint filed on March 3, 1999 did not raise these allegations, (DiTeodoro Decl. exh. H), which accrued at the latest in 1994, the date of the third surgery. Thus, plaintiff's failure to file an administrative complaint by 1996 renders these claims untimely. See 28 U.S.C. § 2401(b).

  c. Failure to Remove Lymph Nodes in 1992

  Plaintiff's complaint alleges that defendants "neglected to remove . . . [his] lymph nodes during the surgery on July 6, 1992, which . . . necessitated further surgery. . . ." (Compl. at 2 para. 2C). However, plaintiff's administrative complaint also failed to allege this claim. (DiTeodoro Decl. exh. H). Since the statute of limitations accrued at the latest, on the date of the second surgery, February 19, 1993, when the nodes were removed, and since plaintiff failed to file an administrative complaint until March 3, 1999 rather than by February 19, 1995 alleging failure to remove his lymph nodes, this claim is also barred by the statute of limitations. See 28 U.S.C. § 2401(b). d. Failure to Preserve Plaintiff's Sperm

  Plaintiff claims that:

[O]n 2/17/93, [d]efendants advised plaintiff of the necessity of a vasectomy as part of the surgical procedure on 2/19/93, and asked if he wanted to preserve his [s]perm, at which time he expressed his desire to do so. When informed that it would cost about $300.00, he stated that he did not have the funds at the time. Defendants made no attempts to try to arrange this, showed no concern and blatantly disregarded [p]laintiff[']s express[] wishes, thereby effectively denying him the ability to ever reproduce. . . .
(Compl. at 2 para. 3). Plaintiff never raised this claim in his administrative complaint, (DiTeodoro Decl. exh. H), and since the statute of limitations on this claim accrued at latest on February 19, 1993, the date of the vasectomy, his claim for the failure to preserve his sperm is time-barred. See 28 U.S.C. § 2401(b).

  e. Failure to Properly Administer Chemotherapy

  Plaintiff asserts that defendants negligently administered his chemotherapy treatment. (Compl. at 3 para. 4). However, his administrative complaint does not mention the improper or negligent administration of chemotherapy. (DiTeodoro Decl. exh. H). Since plaintiff failed to file an administrative claim regarding the alleged failure to properly administer his chemotherapy, the claim is dismissed. See 28 U.S.C. § 2401(b)

  f. Negligent Discharge

  Plaintiff claims that he was negligently discharged from the BVAMC on October 11, 1992, February 11, 1993, June 15, 1993, March 13, 1997, and April 4, 1997 while he was mentally ill. (Compl. at 3 para. 5, 4 para. 7B). However, the October 1992, February 1993, and June 1993 discharge claims are barred by the two year statute of limitations, and hence dismissed. See 28 U.S.C. § 2401(b). The March 1997 discharge claim was not raised in the administrative complaint, and therefore is also dismissed. See id.

  Plaintiff contends that his discharge from the BVAMC on April 4, 1997 was negligent because the side effects of his psychiatric medication rendered him mentally and emotionally unstable, (Compl. at 4 para. 7B), resulting in his perpetration of a crime and current incarceration. (Id.). This claim was timely raised in the March 3, 1999 administrative complaint. However, plaintiff's claim does not state a cognizable cause of action under New York law. See Flemming v. Velardi, No. 02-4113, 2003 U.S. Dist. LEXIS 13078, at *11 (S.D.N.Y. July 30, 2003) (setting forth the elements a plaintiff must allege to state a claim for medical malpractice); see also Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (discussing the elements needed to establish a claim of medical malpractice at trial). Therefore, plaintiff's claim regarding his April 1997 discharge from the BVAMC is dismissed.

  g. Failure to Diagnose Raynaud's Phenomenon

  Although plaintiff allegedly complained of various symptoms of Raynaud's phenomenon, including pain, numbness, and discoloration, as early as January 1993, he was not diagnosed with the illness until March 29, 1995. (Compl. at 5 para. 8). This claim accrued on March 29, 1995, the day plaintiff was diagnosed with the illness. Since plaintiff failed to file an administrative complaint by March 29, 1997, the claim is dismissed as untimely. See 28 U.S.C. § 2401(b).

  h. Failure to Admit Plaintiff to the MICA Program

  Plaintiff claims that he was negligently denied admission to the Mentally Ill Chemically Addicted (MICA) program on March 12, 1997. (Compl. at 3 para. 5D, 4 para. 7). This allegation was not included in plaintiff's March 1999 administrative complaint and is therefore dismissed. See 28 U.S.C. § 2401(b). i. Negligent Prescription of Psychiatric Medication

  Plaintiff alleges that defendants inappropriately "prescribed narcotic drugs while being aware of plaintiff[']s alcoholism/addictive personality . . ." causing "plaintiff to become addicted" and suffer from side effects. (Compl. at 4 para. 6). Since it appears from the record that plaintiff was continually taking medication, the claim did not accrue until the day plaintiff was discharged from the BVAMC on April 4, 1997. Under the continuous treatment doctrine, the statute of limitations is tolled if the plaintiff is under the continuous care of the same doctor or hospital during the course of treatment. Camire v. United States, 535 F.2d 749, 750 (2d Cir. 1976); Schunk v. United States, 783 F. Supp. 72, 82 (E.D.N.Y. 1992). Thus, while the claim for negligent prescription of psychiatric medication claim is timely, it must be dismissed since plaintiff failed to allege that defendants' actions deviated or departed from accepted medical practice. See Cattaneo v. United States, 956 F. Supp. 312, 313 (E.D.N.Y. 1997).

  B. Veterans Benefits Claims

  Plaintiff's complaint also seeks review of the DVA's denials of service-connected compensation. However, a plaintiff wishing to challenge a DVA determination must appeal to the Board of Veterans Appeals within one year of receipt of the DVA's decision letter. 38 U.S.C. § 7104-05 (2004). Board decisions may be appealed to the United States Court of Appeals for Veterans Claims, Veterans Programs Enhancement Act of 1998, Pub.L. No. 105-368, §§ 511(a), 513, 112 Stat. 3341, 3342; 38 U.S.C. § 7252(a), whose determinations may be reviewed by the Court of Appeals for the Federal Circuit. 38 U.S.C. § 7292(c). Hence, this Court lacks subject matter jurisdiction over plaintiff's DVA benefit determinations. See McMillan v. Togus Regional Office, Dep't of Veterans Affairs, No. 03-1074, 2003 WL 23185665, at *1 (E.D.N.Y. Nov. 18, 2003); Fahie v. Dep't of Veterans Affairs, 39 F. Supp.2d 332, 334 (S.D.N.Y. 1999).

  C. Constitutional Claims

  1. Facial Challenges to Legislation

  Plaintiff contends that the "willful misconduct statutes/regulations (38 U.S.C. § 105/38 C.F.R. § 3.301) are discriminatory, and violate rights/plaintiff[']s right[] to due process and equal protection under the law, and are therefore unconstitutional. . . ." (Compl. at 10-11 para. 12). Pursuant to 38 U.S.C. § 105:

an injury or disease incurred during active military . . . service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military . . . service, . . . unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol. . . .
38 U.S.C. § 105(a) (2004). When determining eligibility for service-connected benefits, the DVA distinguishes between alcoholism that is the result of willful misconduct and that which is the result of a psychiatric disorder.


The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.
38 C.F.R. § 3.301(c)(2).

  Plaintiff alleges that the United States and DVA enacted the "willful misconduct laws" to avoid responsibility and liability for the alcoholism that is prevalent among United States servicemen. (Compl. at 11 para. 12A). Plaintiff asks this Court to declare that the statute and regulation are unconstitutional.

  38 U.S.C. § 511(a) provides:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans. . . . Subject to [exceptions set forth in] subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a). The Supreme Court has "distinguished between suits challenging the constitutionality of the statutes underlying the veterans' programs to which section 511(a) does not apply (over which courts thus have jurisdiction), and actions of the VA under those statutes in determining qualifications for benefits, to which section 511(a) does not apply (over which courts therefore lack jurisdiction)." Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (citing Johnson v. Robison, 415 U.S. 361, 367-74, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)). Therefore, district courts have jurisdiction to hear facial constitutional challenges to legislation affecting veterans' benefits. See Johnson, 415 U.S. at 367-74; Larrabee v. Derwinski, 968 F.2d 1497, 1500-01, (2d Cir. 1992); New York v. Eadarso, 964 F. Supp. 240, 242 (E.D.N.Y. 1996).

  The standards applicable to the states under the Equal Protection Clause of the Fourteenth Amendment to the Constitution also apply to the federal government for a violation of due process under the Fifth Amendment. Matthews v. De Castro, 429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976); Weinberger v. Salfi, 422 U.S. 749, 768-70, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Pursuant to the equal protection analysis formulated by the Supreme Court, the type of classification delineated by the legislature determines the degree of judicial review. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). In this case, the rational basis test governs review of the constitutionality of the DVA's alcoholic classifications. See Disabled Am. Veterans v. U.S. Dep't of Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992) ("When Congress legislates in the area of . . . social welfare, review by the courts generally is limited to determining whether there is a rational basis for the classifications drawn."). There is no rational basis if "`the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that one can only conclude that the legislature's actions were irrational.'" Id. at 142 (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)). If the allocation of benefits has some "reasonable basis," it does not offend the Constitution simply "because in practice it results in some inequality." Id. (citing Lindsey v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911)).

  The legislative history of 38 U.S.C. § 105(a) indicates that Congress, in an effort to reduce the federal budget deficit, chose to decrease the spending of the DVA. H.R. Rep. No. 101-964, at 996-97 (1990), reprinted in 1990 U.S.C.C.A.N. 2701-02. The Second Circuit has stated, "steps to control the budget deficit, however modest in degree, nonetheless are legitimate, and perhaps necessary, objectives of the Congress and the President." Disabled Am. Veterans, 962 F.2d at 143. The statute and regulation have also been held to have a rational basis in "order to avoid the possibility of fraudulent claims. . . ." Traynor v. Walters, 606 F. Supp. 391, 397 (S.D.N.Y. 1985), rev'd on other grounds, 791 F.2d 226 (2d Cir. 1986), rev'd 485. U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988).

  Since the classifications of alcoholics are rationally related to legitimate government interests in reducing the federal budget deficit and decreasing the possibility of fraudulent claims, plaintiff's constitutional challenges to 38 U.S.C. § 105(a) and 38 C.F.R. § 3.301(c)(2) survive scrutiny and must fail.

  Plaintiff further questions the constitutionality of other veteran-related statutes and regulations because they do not provide coverage for his injuries allegedly associated with chlorinated dioxins and radiation. (Compl. at 12 para. 14). Specifically, plaintiff alleges that the failure to provide service-connected benefits based on exposure to Agent Orange and other dioxins to veterans who did not serve in Vietnam violates the principle of equal protection. (Compl. at 12 para. 14A); see also Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 11 (codified as amended at 38 U.S.C. § 1116) (2004); 38 C.F.R. § 3.307(a)(6)(iii) (2003). Plaintiff also contends that 38 C.F.R. § 3.311(b) should provide coverage for exposure to all forms of radiation, and not solely the types outlined in the regulation. Since plaintiff fails to affirmatively state that he was exposed to either Agent Orange or radiation, these claims are dismissed.

  2. Sovereign Immunity

  Plaintiff's constitutional claims against the United States, DVA, BVAMC, and Togo G. West, Jr. in his official capacity are dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The doctrine of sovereign immunity bars plaintiff's constitutional claims for damages against the United States. Moreover, since an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, the doctrine of sovereign immunity applies and, therefore, the claims against DVA, BVAMC, and Togo G. West, Jr. in his official capacity are similarly dismissed. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475-79, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); Higgins v. United States, No. 02-499, 2003 WL 21693717, at *2 (E.D.N.Y. May 27, 2003); Hightower v. United States, 205 F. Supp.2d 146, 154 (S.D.N.Y. 2002).

  IV. Conclusion

  For the reasons set forth above, defendants' motion to dismiss is GRANTED and this case is dismissed in its entirety. The Clerk of Court is directed to close this case.


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