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McManamon v. United States

United States District Court, E.D. New York

June 20, 2017



          ROSLYNN R. MAUSKOPF, United States District Judge.

         Pro se plaintiff Thomas McManamon filed this action on October 20, 2014 alleging defamation of character based on false information provided in medical records at the Brooklyn VA hospital. (Compl. (Doc. No. 1).) On December 16. 2015 defendant United States of America (the "Government") moved to dismiss this action pursuant to federal Rules of Civil Procedure (“Rules") 12(b)(1), 12(b)(5). and 12(b)(6). (Mot. to Dismiss (Doc. No. 20).) On October 28, 2016. McManamon filed an opposition. (See Def.'s 10/28/16 Ltr. (Doc. No. 27).) For the reasons that follow, the Government's motion to dismiss is granted.


         McManamon alleges that medical records held by the Brooklyn VA hospital show that "as per 10/19/1999 ... I was arrested and charged 16 times. This [is] false information. ... 1 was never arrested 16 times and charged prior to this. Dr. Ferer's note as per 10/19/1996, states I was arrested and charged 16 times. False info. Dr. Bennet Cohen recorded these erroneous records as fact." (Compl. at 3.)[1] McManamon attaches a medical discharge summary printed October 2. 2014. (Compl. Ex. ("Discharge Summary") (Doc. No, 1-1).) The document includes a section called "LEGAL HISTORY" that states in part:

         As per Dr. Ferers note of 2/14/14:

According to 8/2/2013 documentation. [McManamon] has tiled two lawsuits: One against NYC Correction Department for being dismissed, and one against VA for 'not fairly treated, discriminating" that is reported as being ongoing.
The patient was arrested and convicted for battery and domestic violence in Seminole County, Florida in either 1995 or 1996. As per 10/19/1999 documentation, the patient has been arrested and charged 16 times, spent four months in jail. The patient self-reports 4 incidents of having taking [sic] mugshots (reported to be in Florida), 2 are reported as being related to DWI (7/2/2013 documentation). He believes that he was 'entrapped/

(Id. at 1.) There is a handwritten circle around the above information with a notation stating, "FALSE INFO, " that appears to have been made by McManamon. (Id).

         McManamon alleges that as a result of the foregoing he has experienced "stress, anxiety and depression along with nightmares." (Compl. at 3.) He seeks one million dollars for pain and suffering and a correction of the alleged erroneous information in his medical records. (Compl. at 4.)


         Rule 12(b)(1) allows a defendant to bring a motion to dismiss for "lack of subject-matter jurisdiction." Fed.R.Civ.P. 12(b)(1). Plaintiffs carry the burden to affirmatively establish the existence of subject-matter jurisdiction by a preponderance of the evidence. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), qff'd 561 U.S. 247 (2010) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In determining whether a court has subject matter jurisdiction, "the court may consider relevant documents that are extrinsic to the complaint." N.Y.S. Catholic Health Plan, Inc. v. Acad. O & P Assoc. 321 F.R.D. 278, 294 (H.D.N.Y. 2015) (citing Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002)). "After construing all ambiguities and drawing all inferences in a plaintiffs favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." Aurecchione v. Schoolman Tramp. Sys., Inc., 426 F.3d 635. 638 (2d Cir. 2005) (internal citations and quotation marks omitted).

         The Court is mindful that McManamon is proceeding pro se. As such, his complaint is held to a less exacting standard than a complaint drafted by an attorney. See Haines v. Kertier, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F, 3d 202, 214 (2d Cir. 2008). Because pro se litigants "are entitled to a liberal construction of their pleadings, " the Court reads McManamon's complaint to '"raise the strongest arguments that [it] suggestls]." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted). Nonetheless, the Court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Molina v. New York, 956 F.Supp. 257. 260 (E.D.N.Y.1995).


         "The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota.461 U.S. 273, 287 (1983). For federal subject matter jurisdiction to exist in an action against the Government, the Government must "unequivocally express[] in statutory text" its waiver of immunity. Lane v. Pena,518 U.S. 187, 192 (1996). Such waivers will be strictly construed in favor of the Government, hi. (collecting cases). In the absence of an applicable waiver, this Court lacks jurisdiction over such claims. See Id. Because the doctrine of sovereign immunity is jurisdictional in nature, the burden rests on ...

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