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Casella v. Mersereau

United States District Court, W.D. New York

October 30, 2014

ROCCO ANEELO CASELLA, Plaintiff,
v.
BRADFORD MERSEREAU, M.D., and VETERAN'S HOSPITAL, BUFFALO, N.Y., Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

In this action, Plaintiff alleges under the Federal Tort Claims Act ("FTCA") that Defendants negligently provided medical treatment (or negligently failed to provide medical treatment) while he was under the care of the Veterans Hospital in Buffalo, New York. He further alleges that Defendants failed to properly investigate his administrative claim concerning that care.

Presently before this Court is the government's motion to substitute itself as the proper Defendant and to dismiss Plaintiffs' complaint for lack of subject-matter jurisdiction, pursuant to Rule 12 (b)(1) of the Federal Rules of Civil Procedure. (Docket No. 9.) For the following reasons, the government's motion is granted in its entirety.

II. BACKGROUND

Plaintiff's pro se complaint is somewhat difficult to decipher.[1] (Docket No. 1.) He raises two causes of action, both of which allege that the Department of Veterans Affairs failed to properly investigate an administrative claim that the agency previously denied. In his first cause of action, Plaintiff alleges that the agency investigated and denied his administrative claim "to hide the truth from the U.S.D.C./W.D.N.Y.... of a cover up... to hide the wrong done to [Plaintiff] in [his] original complaint." (Complaint, p. 4.) In his second cause of action, Plaintiff alleges that he was denied emergency medical care and that Mersereau interfered in his treatment by a private physician. (Complaint, p. 4.)

Some background. On or about January 15, 2013, Plaintiff submitted an administrative claim on Form SF-95 to the Office of District Counsel for the Department of Veterans Affairs in Buffalo, NY.[2] (Complaint, p. 8.) Therein, Plaintiff listed the nature of his injury as "head, neck, back, left right hand arm... attempted suicide because of Dr. Bradford Mersereau interfering with my V.A. doctors and especially interfering with my private (non V.A.) doctors for pain medication."[3] (Complaint, p. 8.) Plaintiff identified the dates of his claim as "01/01/2010/09-01-2011." (Complaint, p. 8.)

On September 6, 2013, the Buffalo Regional Counsel's Office of the Department of Veterans Affairs sent Plaintiff a letter of final administrative action on his January 15, 2013 claim. (Complaint, p. 11.) The letter explained the agency's investigation and denial of the claim and advised Plaintiff of the agency's determination that (1) the medical care he received was within the applicable standard of care, and (2) his claim was untimely, because it accrued more than two years before he filed his claim. (Complaint, pp. 11, 12.) In particular, the agency explained that:

[T]he medical records written contemporaneously with your treatment reflect that you began complaining about the issues raised in your claim beginning in at least 2006. Furthermore, a telephone note dated December 7, 2007, indicates that you called the VA and expressed frustration about trying to obtain pain medication, that you went to the Medical Center Director's office on December 5, 2007, to complain about lack of pain management from you primary care provider and that you also went to the office of Congressman Higgins to discuss the matter. A number of other records reflect similar complaints prior to 2011.

(Complaint, p. 12.)

III. DISCUSSION

A. Motion to Substitute Party

The government moves to substitute itself as the proper defendant in this action under 28 U.S.C. § 2679 (d)(1). That section provides that a FTCA case brought against a defendant employee "shall be deemed an action against the United States... and the United States shall be substituted as the party defendant" when the Attorney General certifies that the defendant employee was acting within the scope of his office or employment at the time of the incident giving rise to the FTCA claim. See 28 U.S.C. § 2679 (d)(1). Because the Attorney General has filed such a certification in this case (see Docket No. 10-2), the government's motion must be granted and it must be substituted for Defendants Bradford Mersereau and Veterans Hospital, Buffalo, NY, as the proper defendant in ...


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