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Krueger v. United States

United States District Court, E.D. Michigan, Northern Division

November 14, 2017



          THOMAS L. LUDINGTON, United States District Judge

         On February 22, 2017, Plaintiff Brian Krueger filed a complaint against Defendant United States of America under the American's with Disabilities Act (ADA), 42 U.S.C. § 12131 and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq. Compl. ECF No. 1. The parties stipulated to extend Defendants answer deadline, and Plaintiff filed an amended complaint prior to Defendant filing its Motion to Dismiss. See ECF Nos. 8, 9. Defendant has not objected to the filing of the amended complaint and has asked that the Motion to Dismiss be treated as a response to the amended complaint. Reply at 1, ECF No. 14. Accordingly, the Amended Complaint will be construed as the operative complaint.

         Plaintiff's amended complaint retains the FTCA claim, asserting one count of negligence by the Department of Veterans Affairs (VA) for improperly designating Plaintiff as a behavioral threat and interfering with his ability to receive healthcare at the VA. Am. Compl. at 14, ECF No. 8. Plaintiff's amended complaint omits the ADA claims and adds a claim under § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794, alleging that he was denied benefits to which he was entitled, was harassed and interfered with when he attempted to utilize other benefits, was retaliated against for continuing to seek access to benefits he was rightfully due, and was discriminated against on the basis of his disabilities. Am. Compl. at 13.


         When adjudicating a motion to dismiss for failure to state a claim under rule 12(b)(6), the Court construe's the complaint in the non-movant's favor and accepts all of Plaintiff's factual allegations as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The facts set forth herein are derived from the allegations in Plaintiff's amended complaint.

         Plaintiff is a distinguished, honorably discharged veteran of the United States military who specialized in the safekeeping and protection of generals, dignitaries, and other high level military VIPs in the Middle East. Am. Compl. at 2; Resp. at 1. As a result of his service Plaintiff suffers from severe Post-Traumatic Stress Disorder (PTSD) and Bi-Polar Disorder stemming from a head injury, as well as anxiety. Am. Compl. at 2. This case arises from a series of unfortunate, often hostile interactions between Plaintiff and the staff at the VA where he receives treatment for mental health, among other things. Id. at 3.

         About fifteen years ago Plaintiff was homeless and enrolled in the HUD-VASH housing program, a collaborative program between HUD and VA which combines HUD housing vouchers with VA supportive services to help homeless veterans and their families find permanent housing. Through the HUD-VASH program Plaintiff was placed in a house in Saginaw. Id. His utilities were supposed to be paid on his behalf by the HUDVASH program. Id. After three months, no payments were forthcoming, his landlord allowed the utility payments to lapse, his power was shutoff during the winter, his pipes froze, and he lost all his food. Id. Despite repeatedly contacting the VA, the situation was never rectified. Id. The property was eventually demolished and Plaintiff was forced to vacate. Id. at 6. He was never relocated under the HUDVASH program to a new home. Id.

         Plaintiff's repeated attempts to secure the benefits to which he was entitled under the HUDVASH program resulted in him being cited for malicious use of a telephone. Id. at 4-5. The VA also placed him on a behavioral “flag, ” designating him as a dangerous individual requiring supervision on VA premises, asked him to sign a “behavioral agreement.” Id. at 6, 11; Resp. at 2-3. As a result, Plaintiff was required to be escorted by guards every time he visited the VA to receive treatment. The relationship between Plaintiff and the VA further deteriorated when he attempted to visit the VA Director, he was forced to sit on the ground by the guards, aggravating his back injury, and was ordered to leave the premises. Id. at 7. His phone calls to the VA resulted in the police showing up at his home, arresting him, and jailing him for three days. Id. at 7. He was cited again for malicious use of a telephone and placed on probation. Id. Continued attempts to contact the VA regarding his concerns about his benefits resulted in his probation being revoked and him being jailed for two weeks. Id. at 8.

         After these incidents, Plaintiff began making great strides in his treatment under the direction of Dr. Elaine Carroll. Dr. Carroll wrote a scathing letter to Saginaw County District Court Judge A.T. Frank who was presiding over a drinking related charge against the Plaintiff, in which Dr. Carroll criticized the VA and the negative impact they had on Plaintiff's condition. Id. at 8. This caused retaliation by the VA against Plaintiff. Id. Plaintiff remained on the behavioral flag at the VA, and had additional restrictions placed on him. Id. at 9. He was no longer permitted to call the VA staff directly, but had to relay his requests directly to an answering machine. Id. The VA staff, including his guards and a therapist, also began to hassle Plaintiff about bringing his service dog, Kola, into the VA. Id. at 8. The therapist suggested that the dog was a crutch and needed to be taken away. Id. at 9. Security staff told Plaintiff that Kola could not be inside, and “Kola was eventually prohibited by VA personnel from performing his tasks and from being allowed to sit next to the Plaintiff inside the VA.” Id.

         The situation reached a point of conflict when Plaintiff went to the VA Urgent-Care Center after he experienced chest pains. Id. at 10. There were no on-duty officers to escort Plaintiff, and he was thus unable to go into the emergency room through the main entrance. Id. at 10. Plaintiff honked his horn at the ambulance bay but received no response. Id. He called 911 and, at the direction of 911 operators, drove his truck into the ambulance bay to gain access to the emergency room. Id. Three officers then ran out and accosted Plaintiff demanding that he exit the vehicle but keep his dog inside the vehicle. Id. In order to perform his service function, Kola is at all times tethered to Plaintiff. Id. Thus, Plaintiff was unable to comply with the officers' instructions, which he tried to explain to them. Id. The confrontation triggered Plaintiff's PTSD, which caused “Kola to place himself between Plaintiff and the VA officers, pulling, nipping, and herding the Plaintiff away from the source of stress as he was trained to do.” Id. The officers then demanded that Plaintiff “get off the fucking property or he would go to jail” and that his dog was “unruly and dangerous.” Id.

         The situation eventually de-escalated, the officers allowed him entry into the ER, but he was issued two citations while in his hospital bed, one for disturbing the peace on federal property and another for disorderly conduct. Id. at 11. Plaintiff was assigned a new social worker who challenged his behavioral flag, which was ultimately removed. Id. However, the officers' treatment of Plaintiff did not improve, he became fearful of receiving treatment at the VA, and wished to continue his treatment in a non-hostile environment. Id. Plaintiff sought to obtain care outside of the VA while retaining access to VA benefits through the Veteran's Choice Program. Id. at 12. Plaintiff had to seek permission from the local VA to take advantage of the program, but they did not allow him to apply. Id.

         Most recently, in 2017, Plaintiff attempted to look into physical therapy treatment options at the VA, but wanted his concerns about retaliation and harassment addressed first. Id. at 12. His social worker contacted VA administration, who indicated that they would not discuss any concerns, and that they would only accept a written claim through their legal department. Id. at 12. Plaintiff now refuses to return to the VA unless it is unavoidable due to continuing obstructionism and harassment by the VA staff. Id. at 13.

         Plaintiff alleges that the VA violated § 504 of the Rehabilitation Act. Id. He alleges they denied him access to the benefits to which he is entitled, such as the HUDVASH and Veterans Choice Programs. Id. He alleges the VA denied him these benefits on the basis of his disabilities and their associated accommodations, and in retaliation for his criticism of the VA and requests to secure the benefits to which he was entitled. Id. He also alleges that the VA interfered with his utilization of services he was receiving by imposing unreasonable and unwarranted restrictions on his ability to access the VA, creating a hostile environment, inhibiting his ability to seek emergency care, and inhibiting his use of this service dog. Id. at 13.

         Plaintiff also alleges negligence by the VA under the FTCA. Id. at 14. He alleges the VA breached their duty to Plaintiff as a veteran and disabled individual by failing to allow Plaintiff to access the benefits to which he was entitled, and improperly imposing rules and requirements restricting his access to other VA services he was receiving. Id.

         As a result of the alleged Rehabilitation Act and FTCA violations Plaintiff alleges he “sustained financial hardship, emotional distress, personal and professional growth opportunities, access to the benefits and services of programs to which he is entitled, and a loss of reputation in the community.” Id. at 14.


         Defendant's motion raises four principal arguments, of which two are jurisdictional arguments under 12(b)(1), one raises the statute of limitations, and one asserts failure to state a claim under 12(b)(6). Mot. at 1, ECF No. 9.

         Defendant contends this Court lacks subject matter jurisdiction because 1) the Court of Veterans Appeals (CVA) has exclusive jurisdiction over “claims regarding veterans benefits, ” and 2) Plaintiff only exhausted administrative remedies with respect to one claim which was resolved in his favor and is therefore moot. Mot. at 5, 9. Plaintiff responds that the CVA does not have jurisdiction over his harassment, interference, and retaliation claims, which are distinct from denial of benefits claims. Resp. at 10. Plaintiff also argues that he exhausted administrative remedies as his claim was not resolved in his favor and is therefore not moot. Resp. at 14.

         Defendant asserts that Plaintiff's Rehabilitation Act claims are barred by a three-year statute of limitations, and Plaintiff's FTCA claim is barred by 28 U.S.C. § 2401(b), which requires Plaintiff to 1) file an administrative claim within two years of accrual, and 2) file an action within 6 months of final denial. Mot. at 19-20. Plaintiff contends both claims are timely. With respect to his Rehabilitation Act claims, Plaintiff concedes that some relevant events occurred outside the limitations period. Resp. at 16. However, Plaintiff contends that because he was left on the behavioral flag for an unreasonable amount of time, each time he visited the VA a new violation occurred. Id. With respect to his FTCA claim, Plaintiff responds that he filed an administrative tort claim with the VA and filed a complaint in this Court within six months of the final denial of that claim. Resp. at 20.

         Defendant believes the amended complaint fails to state a claim under the Rehabilitation Act, which requires that Plaintiff 1) allege that his disabilities were considered by the VA in formulating a discriminatory policy or 2) allege that the VA could have reasonably accommodated his disability but refused to do so. McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459-60 (6th Cir. 1997); Mot. at 16-17. Finally, Defendant argues that Plaintiff has not pled any actionable torts under the FTCA. Plaintiff believes the amended complaint states a claim under the Rehabilitation Act by alleging that the VA placed him on a behavioral flag because of his disability, and refused to accommodate his service dog. Resp. at 18. Plaintiff believes he pled a valid negligence cause of action under the FTCA by alleging that the VA breached its duty to him as a veteran by negligently placing him on a behavioral flag and keeping him there, which resulted in significant emotional distress. Id. at 23.


         Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. A 12(b)(1) motion can challenge the claim of jurisdiction on the face of the complaint if Plaintiff's allegations, accepted as true, do not support jurisdiction (a facial challenge). DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A 12(b)(1) motion can also challenge the factual basis for jurisdiction asserted in the complaint (a factual challenge). Id. In the case of a factual challenge, the Court has broad discretion to consider evidence outside the pleadings when determining the existence of subject matter jurisdiction. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). Plaintiff bears the burden of establishing the facts giving rise to jurisdiction. Id.; DLX, Inc., 381 F.3d at 511.

         A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not have provided “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79 (quotations and citation omitted).


         The Veteran's Judicial Review Act of 1988 (VJRA) vests exclusive jurisdiction over claims regarding veterans benefits with the Court of Veterans Appeals (CVA), whose decisions are reviewed by the Court of Appeals for the Federal Circuit. 38 U.S.C. §§ 511, 7252, 7292; Newsom v. Dep't of Veterans Affairs, 8 Fed.Appx. 470, 471 (6th Cir. 2001); Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997). This jurisdiction extends to “all questions of law and fact . . . that affect[] the provision of benefits . . . to veterans.” 38 U.S.C. §§ 511, 7252, 7292; Beamon, 125 F.3d at 967. The VJRA thus “preclude[s] district court jurisdiction over VA decisions relating to benefits claims, including decisions of constitutional issues.” Rodriguez v. United States, 2015 WL 4389635, at *1 (N.D. Ohio July 15, 2015) (citing Beamon, 125 F.3d at 967). The exclusive jurisdiction of the CVA extends not only to claims for denial of VA benefits, but constitutional issues such as retaliation for exercise of first amendment rights. Hicks v. Veterans Admin., 961 F.2d 1367 (8th Cir. 1992).


         The Rehabilitation Act prohibits discrimination against disabled individuals by entities receiving federal funding, as well as federal contractors and subcontractors. Although the 1973 Act did not create an express private cause of action, courts have recognized an implied private right of action under § 504. See, e.g., Smith v. U.S. Postal Serv., 742 F.2d 257, 259 (6th Cir. 1984). The Rehabilitation Act and the Americans with Disabilities Act cover largely the same conduct, namely discrimination against disabled individuals. The main distinction between the Rehabilitation Act and the ADA is that the latter extends to purely private entities whereas the Rehabilitation Act is limited to entities receiving federal financial assistance. McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 460 (6th Cir. 1997). The ADA also does not provide a cause of action against the United States, whereas the Rehabilitation Act does. See Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007). The Rehabilitation Act provides, in relevant part, that: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C.A. § 794.


         The Rehabilitation Act requires exhaustion of administrative remedies as a prerequisite to a claim. Smith v. U.S. Postal Serv., 742 F.2d 257, 258 (6th Cir. 1984). Exhaustion of administrative remedies is a threshold requirement to a reviewing Court's exercise of subject matter jurisdiction. Howell by Howell v. Waterford Pub. Sch., 731 F.Supp. 1314, 1315 (E.D. Mich. 1990). Therefore, in response to a factual challenge to subject matter jurisdiction, a court has discretion to consider matters outside of the pleadings in determining whether exhaustion has occurred, and the Plaintiff has the burden of establishing exhaustion. Cartwright, 751 F.3d at 759; DLX, Inc., 381 F.3d at 511. Pursuant to § 504 of the Rehabilitation Act, the VA has promulgated regulations setting forth the requirements for filing an administrative claim. See 38 C.F.R. § 15.101 et seq. The regulations require that a written complaint be submitted to the agency setting forth ...

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