United States District Court, E.D. New York
THOMAS MCMANAMON. Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
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.
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.) 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:
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.
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.)
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).
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
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 ...