Bell v. Department of the Navy Office of the Judge Advocate General

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

RODERICK BELL, )

)

Plaintiff, )

)

v. ) No. 4:19-cv-02221-AGF

)

DEPARTMENT OF THE NAVY, )

OFFICE OF THE JUDGE ADVOCATE )

GENERAL, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff Roderick Bell’s response to the Court’s

show cause order of December 23, 2019. (Docket No. 5). Having reviewed the response, and for

the reasons discussed below, the Court will direct the Clerk of Court to issue process on defendant.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Background

Plaintiff is a self-represented litigant who filed a civil action against the Department of the

Navy, Office of the Judge Advocate General, on July 25, 2019. He brought the action pursuant to

the Federal Tort Claims Act (FTCA) and the Caring for Camp Lejeune Families Act of 2012.

(Docket No. 1 at 3). In the “Statement of Claim,” plaintiff alleged that:

As a member of the USMC, I was stationed at Camp Lejeune, North

Carolina from May 5, 1969 to December 1969. I was exposed to and

drank contaminated water (Industrial Solvents, benzene and other

chemicals).

(Docket No. 1 at 5). Plaintiff did not assert any injuries. With regard to relief, he sought $3,000,000

in damages. Along with the complaint, plaintiff filed a motion for leave to proceed in forma

pauperis. (Docket No. 2).

On December 23, 2019, the Court granted plaintiff’s motion for leave to proceed in forma

pauperis. (Docket No. 4). The Court also reviewed plaintiff’s complaint pursuant to 28 U.S.C. §

1915. In so doing, the Court noted that plaintiff’s complaint was subject to dismissal for two

reasons. First, the Court observed that the FTCA has an exhaustion requirement, but that plaintiff

had not demonstrated that he had presented his claim to the appropriate federal agency. Second,

the Court explained that plaintiff’s complaint did not adequately state a claim. In particular, while

plaintiff stated that he had drunk contaminated water, he had not alleged the liability of the United

States, or that he had been injured. The Court ordered plaintiff to show cause why his case should

not be dismissed for lack of exhaustion and for failure to state a claim. He was given thirty days

to respond. Plaintiff filed a response on January 22, 2020. (Docket No. 5).

Plaintiff’s Show Cause Response

Plaintiff responded to the Court’s show cause order by filing an amended complaint on a

Court-provided civil complaint form. As in the original complaint, he brings this action pursuant

to the FTCA and the Caring for Camp Lejeune Families Act of 2012. (Docket No. 5 at 3). He

names the Department of the Navy and the United States Marine Corps as defendants.

In his “Statement of Claim,” plaintiff asserts that as a member of the United States Marine

Corps, he was stationed at Camp Lejeune, North Carolina from May 1969 to December 1969.

(Docket No. 5 at 4). During this time, he “drank water containing industrial solvents, benzene and

other chemicals.” As a result of consuming this water, plaintiff alleges that he contracted “leukemia

and neurobehavioral disorders requiring medical treatment.” He further states the United States

Department of Veterans Affairs sent him notice that the water he drank while at Camp Lejeune

was contaminated. (Docket No. 5 at 4; Docket No. 5-1 at 1). With regard to relief, plaintiff seeks

$3,000,000 in damages. (Docket No. 5 at 4).

Plaintiff also states in his amended complaint that he filed a claim for compensation for his

injuries. This claim was filed with the Department of the Navy, under which the Marine Corps is

administered. (Docket No. 5 at 4; Docket No. 5-1 at 2-3). The Department of the Navy declined

plaintiff’s claim, and sent him a right to sue letter on January 25, 2019. (Docket No. 5-1 at 2-3).

The letter advised plaintiff that he had six months from the date of the letter to file suit in Federal

Court. Plaintiff filed his original complaint on July 25, 2019, exactly six months after the mailing

of the right-to-sue letter.

Discussion

Plaintiff is a self-represented litigant who brings this civil action against the United States1

pursuant to the FTCA2, alleging that he became ill after drinking contaminated water while

stationed at Camp Lejeune as a member of the United States Marines. The Court ordered plaintiff

to show cause why his case should not be dismissed for lack of exhaustion and for failure to state

a claim. Plaintiff responded by filing an amended complaint. Having reviewed the amended

complaint, and for the reasons discussed below, the Court will direct the Clerk of Court to issue

process on the United States.

1 The Court notes that the proper party defendant in this case is actually the United States, rather than the Department

of the Navy or the Marine Corps. See Duncan v. Dep’t of Labor, 313 F.3d 445, 447 (8th Cir. 2002) (“Because a federal

agency cannot be sued under the Federal Tort Claims Act, the United States is the proper defendant”).

2 Plaintiff asserts federal jurisdiction under both the FTCA and the Caring for Camp Lejeune Families Act of 2012.

However, the Caring for Camp Lejeune Families Act does not waive the immunity of the United States or provide a

separate cause of action. Rather, its purpose is to make veterans and family members of veterans eligible to receive

hospital care and medical services for illnesses contracted as a result of residing at Camp Lejeune. See 38 U.S.C. §

1710(e)(1)(F); and 38 U.S.C. § 1787. See also 28 U.S.C. § 2679(b)(1) (stating that FTCA is the exclusive remedy to

seek relief for tortious conduct by employees or agents of the United States or one of its agencies).

A. Exhaustion

It is well established that the United States is entitled to sovereign immunity, and cannot

be sued without its consent. Honda v. Clark, 386 U.S. 484, 501 (1967). However, “[t]he FTCA

waives federal sovereign immunity for injuries caused by the negligent or wrongful act or omission

of any employee of the Government while acting within the scope of his office or employment,

under circumstances where the United States, if a private person, would be liable.” Newcombe v.

United States, 933 F.3d 915, 917 (8th Cir. 2019). The FTCA acts as a limited waiver of sovereign

immunity, which opens the door to state-law liability claims against the federal government for

harm cause by a governmental employee. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir.

2019). Pursuant to statute:

An action shall not be instituted upon a claim against the United

States for money damages for injury or loss of property or personal

injury or death caused by the negligent or wrongful act or omission

of any employee of the Government while acting within the scope

of his office or employment, unless the claimant shall have first

presented the claim to the appropriate Federal agency and his claim

shall have been finally denied by the agency in writing and sent by

certified or registered mail.

28 U.S.C. § 2675(a). Complete exhaustion of administrative remedies is required before the

judicial process can be invoked. McNeil, 508 U.S. 106, 112 (1980). Exhaustion of administrative

remedies is a jurisdictional prerequisite. Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996). That is,

before bringing an action against the United States, a claimant must present his or her claim to the

appropriate federal agency, and the agency must make a final decision. Bohac v. Walsh, 386 F.3d

859, 861 (8th Cir. 2004). Failure to comply with the exhaustion requirement will result in the

dismissal of the suit for lack of subject-matter jurisdiction. See Mader v. United States, 654 F.3d

794, 808 (8th Cir. 2011) (concluding “that conformity with § 2675(a) is a jurisdictional term of the

FTCA’s limited waiver of sovereign immunity”). See also Allen v. United States, 590 F.3d 541,

544 (8th Cir. 2009) (stating that “[a] federal district court does not have jurisdiction over an FTCA

claim unless it was first presented to the appropriate federal agency”).

In his original complaint, plaintiff presented no allegations that he had exhausted his

administrative remedies before filing his lawsuit. The Court ordered him to show cause why his

complaint should not be dismissed for failure to exhaust. Plaintiff’s amended complaint

demonstrates that he has presented his claim to the appropriate federal agency, in this case, the

Department of the Navy. (Docket No. 5-1 at 2). The Department of the Navy denied plaintiff’s

claim, and sent him a letter advising him that if he disagreed with the denial, he could file a lawsuit

in the appropriate United States District Court within six months. Plaintiff subsequently filed this

lawsuit six months after the right-to-sue letter was sent. Therefore, for purposes of initial review,

it appears that plaintiff has exhausted his administrative remedies.

B. Stating a Claim

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss the case of a litigant

proceeding in forma pauperis at any time if the Court determines that the action is frivolous,

malicious, or fails to state a claim. To state a claim, a plaintiff must demonstrate a plausible claim

for relief, which is more than a “mere possibility of misconduct.” Ashcroft, 556 U.S. at 679. In

other words, a plaintiff must plead factual content that raises “a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In his amended complaint, plaintiff alleges that he was posted to Camp Lejeune while in

the military. He states that he consumed water contaminated with industrial solvents, benzene, and

other chemicals. He further states that exposure to these chemicals have lead to serious health

conditions. The Court must accept the allegations contained in the complaint as true and make all

reasonable inferences in plaintiff’s favor. See Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498,

499 (8" Cir. 2019). Furthermore, because plaintiff is a self-represented litigant, the Court must

give plaintiff's amended complaint the benefit of a liberal construction. See Haines, 404 U.S. at

520. As such, the allegations presented by plaintiff are sufficient to survive initial review pursuant

to 28 U.S.C. § 1915. Therefore, the Clerk of Court will be directed to issue process on the United

States.

Accordingly,

IT IS HEREBY ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on the United States Department of Veterans Affairs, care of Secretary Kenneth

J. Braithwaite, 1000 Navy Pentagon, Washington D.C. 20350.

IT IS FURTHER ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on William Barr, United States Attorney General, U.S. Department of Justice, 950

Pennsylvania Avenue NW, Washington, D.C. 20530.

IT IS FURTHER ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on Jeffrey B. Jensen, United States Attorney, Thomas F. Eagleton Courthouse,

111 South 10" Street — Room 20.333, St. Louis, MO 63102.

Dated this 24th day of August, 2020.

AUDREY G. Ft ike ( \

UNITED STATES DISTRICT JOUBGE