Nolan v. Wilkie

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00063-MR-WCM

HOLLY JEAN NOLAN, )

)

Plaintiff, )

)

vs. ) O R D E R

)

)

ROBERT WILKIE, Secretary for )

Department of Veteran Affairs, )

)

Defendant. )

________________________________ )

THIS MATTER is before the Court on the Plaintiff’s Amended

Complaint [Doc. 14].

I. PROCEDURAL BACKGROUND

The Plaintiff, who is a military veteran, initiated this action on February

26, 2019. [Doc. 1]. In her original Complaint, the Plaintiff alleged that the

Secretary for the Department of Veterans Affairs (“VA”), the Governor of the

State of New Hampshire, the Governor of the State of Vermont, United

States Senators Bernie Sanders and Patrick Leahy, and others violated her

constitutional rights under the First, Fifth, and Fourteenth Amendments.

On review under 28 U.S.C. § 1915, the Court dismissed the Plaintiff’s

Complaint without prejudice, noting several deficiencies in her pleading.

[Doc. 3]. The Plaintiff appealed, and on August 22, 2019, the Fourth Circuit

Court of Appeals dismissed the Plaintiff’s appeal and remanded the case so

as to allow the Plaintiff an opportunity to file an amended complaint curing

the noted deficiencies and stating a facially sufficient claim for relief. [Doc.

8]. On remand, this Court gave the Plaintiff fourteen (14) days to file an

Amended Complaint. [Doc. 11]. The Court advised the Plaintiff that any

amended pleading would be subject to review pursuant to 28 U.S.C. § 1915,

and that if the Amended Complaint “fail[ed] to correct the deficiencies

previously identified by the Court, this action will likely be dismissed with

prejudice.” [Id. at 2].

The Plaintiff filed her Amended Complaint on November 12, 2019,

again asserting claims for violations of her rights under the First, Fifth, and

Fourteenth Amendments to the United States Constitution but naming only

the VA Secretary as a defendant.1 [Doc. 14]. While the Complaint is

rambling and at times difficult to discern, the Plaintiff’s claims appear to be

1 As the Plaintiff’s Amended Complaint supersedes her original Complaint, all the claims

asserted in the original Complaint against defendants other than Secretary Wilkie are

hereby deemed waived. See Young v. City of Mt. Ranier, 238 F.3d 567, 573 (4th Cir.

2001).

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centered around the following allegations. The Plaintiff alleges that she was

honorably discharged from the United States Air Force in 1989 after being

sterilized without her consent. [Doc. 14 at 6]. Sometime thereafter, the

Plaintiff filed a whistleblower complaint against two private hospitals at which

she was employed in New Hampshire for committing fraud against the

government. The Plaintiff alleges that the VA was “part of this” and that

“there were individuals who worked for the VA who acted against the

government for the hospitals in New Hampshire.” [Id. at 7]. The Plaintiff

further contends that she was diagnosed with Post-Traumatic Stress

Disorder (PTSD) by VA medical staff, but that this diagnosis was given to her

only “to discredit everything [she] was saying” with respect to the

whistleblower complaint. [Id.; see also id. at 8]. She further challenges her

100% disability rating, alleging that “by keeping me on public assistance they

can keep me in line.” [Id. at 7].

The Plaintiff withdrew her whistleblower action in 2012. Subsequent

to the dismissal of her whistleblower action, the Plaintiff was terminated from

two other jobs, including one at the VA Medical Center in Manchester, New

Hampshire in June 2012. [Id. at 9]. The Plaintiff also alleges that from June

2013 through August 2014, she resided in VA-funded housing in Vermont

but was “thrown out in the street and left for homeless” because she “would

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not play the game of defrauding the government.” [Id. at 10]. While residing

in Vermont, the Plaintiff was re-hired by the VA but she alleges that she was

terminated from that position in November 2016 after she filed a complaint

with the EEOC. [Id. at 14].

The Plaintiff moved to North Carolina in 2017. She alleges that she

continues to have difficulty finding employment. She further alleges that

while she has “had some issues with the Asheville VA Medical Center,” she

has tried to resolve those issues and does not intend to bring any claims in

this action related to her treatment at that facility. [Id. at 24].

For relief, the Plaintiff requests the following:

I am asking the court to help me out with determining

a monetary amount to ask for I have no idea. I am

also asking for employment. In addition I am asking

that I not be responsible for paying back food stamps

in 2 states and unemployment in one state. I am

asking that the Department of Veteran Affairs change

my disability diagnosis to Depression and Anxiety vs

PTSD and that I be free from them and that my files

with them be sealed.

[Id. at 24-25].

II. STANDARD OF REVIEW

Because the Plaintiff, who is proceeding pro se, seeks to proceed in

forma pauperis, the Court must examine the pleadings to determine whether

this Court has jurisdiction and to ensure that the action is not frivolous or

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malicious and states a claim upon which relief can be granted. See 28

U.S.C. § 1915(e)(2)(B)(i) and (ii); see also Michau v. Charleston County,

S.C., 434 F.3d 725, 728 (4th Cir. 2006) (noting that § 1915(e) “governs IFP

filings in addition to complaints filed by prisoners”). A complaint is deemed

frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). The Fourth Circuit has offered the

following guidance to a court tasked with determining whether a complaint is

frivolous under § 1915(e):

The district court need not look beyond the

complaint’s allegations in making such a

determination. It must, however, hold the pro se

complaint to less stringent standards than pleadings

drafted by attorneys and must read the complaint

liberally. Trial courts, however, are granted broad

discretion in determining whether a suit is frivolous or

malicious.

White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). While the complaint

must be construed liberally, the Court may “pierce the veil of the complaint's

factual allegations and dismiss those claims whose factual contentions are

clearly baseless,” including such claims that describe “fantastic or delusional

scenarios.” Neitzke, 490 U.S. at 327, 328.

Rule 8 of the Federal Rules of Civil Procedure provides that “[a]

pleading states a claim for relief must contain (1) a short and plain statement

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of the grounds for the court's jurisdiction ... [and] (2) a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(1), (2). A complaint fails to state a claim where it offers merely

“labels and conclusions,” “a formulaic recitation of the elements of a cause

of action,” or “naked assertion[s]” devoid of “further factual enhancement.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)).

III. DISCUSSION

Upon careful consideration and review, the Court concludes that the

Plaintiff’s Amended Complaint must be dismissed. First, with respect to the

Plaintiff’s claims challenging her diagnosis of PTSD and the VA’s

subsequent disability determination, federal district courts lack the

jurisdiction to review a VA benefits decision. The Veterans’ Judicial Review

Act of 1988, 38 U.S.C. § 511(a), provides the exclusive procedure by which

a veteran can challenge such determinations. See Hutton v. U.S. Dep’t of

Veterans Affairs, No. 5:13-CV-417-FL, 2014 WL 2112673, at *2 (E.D.N.C.

Apr. 4, 2014). Appeals of benefit decisions must be filed with the Board of

Veterans’ Appeals (“BVA”), and BVA decisions in turn may be reviewed by

the Court of Appeals for Veterans Claims. Id. As such, this Court has no

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jurisdiction to review the Plaintiff’s claims with respect to her diagnosis or

disability determination.

As for the Plaintiff’s other claims, the Plaintiff has failed to state any

cognizable cause of action against the VA. The Plaintiff appears to claim

that she was terminated from multiple jobs, both at the VA and in the private

sector, and was subject to various other mistreatment, all in retaliation for

her whistleblower activities. The Plaintiff’s allegations in this regard,

however, fail to set out a plausible claim for retaliation by the Defendant.

Further, while the Plaintiff alleges that she was fired from her last VA job for

filing an EEOC complaint, the Plaintiff offers nothing but conclusory

assertions to support this claim. For these reasons, the Court concludes that

the Plaintiff has failed to state a claim upon which relief can be granted, and

such claims are hereby dismissed.

When a Court determines upon a § 1915(e) review that a complaint is

factually or legally baseless, the Court must dismiss the case. See Neitzke,

490 U.S. at 328; White, 886 F.2d at 724. It is the intent of Congress that

such dismissals occur prior to service of the complaint on defendants.

Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996). As such, the Court

will dismiss this civil action.

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IT IS, THEREFORE, ORDERED that the Plaintiff's claims challenging

her diagnosis and disability determination by the VA are hereby DISMISSED

WITHOUT PREJUDICE for lack of subject matter jurisdiction. The other

claims asserted in the Plaintiffs Amended Complaint are hereby

DISMISSED WITH PREJUDICE.

The Clerk of Court is respectfully directed to close this civil case.

IT IS SO ORDERED.

Signed: December 5, 2019

2 Reidinger ic as

United States District Judge as