The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiffs Orson M. Leibenguth ("Leibenguth" or "plaintiff") and his wife Brenda Leibenguth bring this action pursuant to the Federal Tort Claims Act, the Freedom of Information Act, the Privacy Act, and 42 U.S.C. § 1983 claiming that the defendants violated several of their federal, constitutional and civil rights, and caused emotional harm in connection with plaintiffs' requests for Leibenguth's medical records from the United States Department of Veterans Affairs (the "VA"). Specifically, plaintiffs claim that Leibenguth's request for his medical records from the VA was delayed, and that as a result of the delay, he was denied medical benefits. Although plaintiff acknowledges that he eventually received the benefits he sought, he claims that the delay in receiving the information he sought caused him emotional harm.
Defendants deny plaintiffs' claims, and move to dismiss the Amended Complaint on grounds that this court lacks subject matter jurisdiction over some claims, and that plaintiff has failed to state a cause of action with respect to the remaining claims. Plaintiff opposes defendants motion, and seeks permission to file a Second Amended Complaint to allege an additional cause of action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). For the reasons set forth below, I grant defendants' motion to dismiss.
Plaintiff Orson M. Leibenguth is a Vietnam War veteran who is currently receiving 100% disability benefits from the VA. Sometime prior to February, 2004, plaintiff was diagnosed with cancer of the right tonsil. On February, 3, 2004, Leibenguth filed a claim with the VA to have the condition deemed service related, due to exposure to Agent Orange while in Vietnam.
Plaintiff's claim for benefits was denied in November, 2004. Following the denial, plaintiff requested a hearing before a Direct Review Officer, which was scheduled for July 13, 2005. Leibenguth also filed a request for his medical records in the custody of the VA. The VA acknowledged plaintiff's request for records, and in a letter dated November 24, 2004, indicated that it would respond to the request within 30 days. On December 28, 2004, plaintiff, who had still not received the records, made a second request for the records. On March 23, 2005, plaintiff made a third request for his records. In response, the VA stated that records had been sent to plaintiff in October, 1998.
On April 2, 2005, plaintiff made a fourth request for records, noting that he was requesting records generated after October 1998. He thereafter drove to the VA offices to review his records in person, but was prohibited from doing so because he did not have an appointment. On June 9, 2005, plaintiff made a fifth request for records.
On July 13, 2005, plaintiff attended his hearing before the Direct Review Officer. At the hearing, plaintiff protested that he was not fully prepared because he had not yet received his medical records from the VA. Two days later, on July 15, 2005, plaintiff was allowed to access his records.
On July 21, 2005, plaintiff requested a new hearing on grounds that he had not had access to his medical records prior to the hearing. By letter dated August 4, 2005, the VA denied plaintiff's request, but indicated that if the plaintiff's claim was denied, the VA would immediately schedule a new hearing. On September 12, 2005, plaintiff's claim was denied. According to the plaintiff, however, the VA did not schedule a new hearing. According to the defendant, a new hearing was not scheduled because plaintiff had elected to appeal the denial of his claim, and also chose to pursue political remedies with the assistance of his local Congressional Representative. Although not set forth in the Amended Complaint, it is uncontroverted that the plaintiff did prevail on his claim, and was awarded coverage for his condition. Accordingly, while plaintiff does not seek damages for the denial of his claim, he does seek two million dollars in damages for the almost six-month delay in gaining access to his medical records.
I. Defendants' Motion to Dismiss
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of the Complaint where the Court lacks subject matter jurisdiction over the dispute. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the Complaint where the plaintiff has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3rd 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can ...