Reid v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DR. REID, JA’MEZ JAHMEZ-JAMES ANTONIO, MEMORANDUM AND ORDER

Plaintiff, 19-CV-1221

-against-

UNITED STATES OF AMERICA,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Dr. Ja’mez Jahmez-James Antonio Reid

(“plaintiff”), proceeding pro se, commenced this action on March

1, 2019, pursuant to 28 U.S.C. §§ 1346(b) and 2671-2680, i.e.

the Federal Tort Claims Act (“FTCA”), in the United States

District Court for the Eastern District of New York, complaining

of treatment he received at the Brooklyn Veterans Affairs

(“Brooklyn VA”) office. (See ECF No. 1, Complaint.) Presently

before the court is the government’s motion to dismiss

plaintiff’s amended complaint for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion”).

For the reasons set forth below, the court GRANTS the

government’s Motion and dismisses this action.

BACKGROUND

On April 29, 2019, defendant filed a letter requesting

a pre-motion conference or, in the alternative, that the court

set a briefing schedule for defendant’s proposed motion to

dismiss the complaint for failure to state a claim pursuant to

Rule 12(b)(6). (ECF No. 5, Letter motion for pre motion

conference.) In response, by letter dated May 27, 2019 and

uploaded to ECF on May 31, 2019, plaintiff expressed that he was

“baffled and shocked” at the government’s perceived

“misrepresentation” of his lawsuit, and stated that he was

willing to settle the action for “$100 Million USD.” (ECF No.

7, Letter dated 5/27/19.) On June 6, 2019, the court granted

the government’s pre-motion conference request by scheduling a

pre-motion conference for June 25, 2019. (Dkt. Order dated

6/6/2019.) On June 25, 2019, the parties appeared for a

telephonic pre-motion conference at which the parties agreed

that a settlement conference before Magistrate Judge Bloom would

be helpful. (Minute Entry dated 6/25/2019.)

On July 19, 2019, the parties appeared for an in-

person pre-settlement conference before Judge Bloom. At that

conference, Judge Bloom stayed defendant’s response to the

complaint in order to allow plaintiff time to consider filing an

amended complaint. Judge Bloom also scheduled a status

conference with the parties for September 17, 2019. On

September 17, 2019, the parties appeared for an in-person status

conference. Plaintiff requested and was granted permission to

file an amended complaint, by November 18, 2019, and defendant

was ordered to file a letter by November 25, 2019 stating

defendant’s position with respect to plaintiff’s amended

complaint. (Order dated 9/18/2019.)

Plaintiff’s Amended Complaint

On September 26, 2019, plaintiff filed an amended

complaint. (ECF No. 14, “Am. Compl.”) The amended complaint

consists of 106 pages of disjointed documents, including medical

records, shipping receipts, United States Senators’ biographies,

multiple copies of plaintiff’s resume, plaintiff’s Phi Delta Phi

honor society membership identification, plaintiff’s United

States Army retiree identification, and other materials. (See

generally ECF No. 14.) Plaintiff’s amended complaint also

includes the Social Security Administration’s decision by ALJ

Michael Friedman, which found that plaintiff has been disabled

since the onset date of July 20, 2007, due to “intraventricual

[sic] and bilateral cerebellar hemorrhage secondary to ruptured

arterial venous malformation, resulting in severe cognitive and

depressive deficits.” (Id. at 29-32.) The ALJ noted that

plaintiff’s problems began when he suffered a stroke and

underwent brain surgery in June 2007, causing paranoid

delusions, memory and concentration problems, and weight loss of

40 pounds. (Id. at 29-30.) Plaintiff was further noted to be

“obsessed with Satan,” had “written accusatory letters to

politicians claiming the military conspired against him, and the

Army has caused his disability,” and plaintiff “believes he is

Jesus Christ (testimony).” (Id.) According to a Benefits

Planning Query report dated September 20, 2019, issued by the

Social Security Administration, plaintiff receives Social

Security Disability Insurance benefits of $1,048.60 per month.

(Id. at 34.)

On April 21, 2009, plaintiff was placed on the United

States Army’s Temporary Disability Retired List. (Id. at 42.)

On June 24, 2013, plaintiff was removed from the Temporary

Disability Retired List due to his permanent physical disability

and was permanently retired in his current grade of rank. (Id.)

By letter dated December 20, 2018, the Department of

Veterans Affairs (“DVA”) denied plaintiff’s administrative tort

claim, finding that “there was no negligent or wrongful act on

the part of an employee of the [DVA] acting within the scope of

employment that caused you compensable harm.” (Id. at 18.) The

DVA notified plaintiff that he had the right to sue directly

under the FTCA, 28 U.S.C. §§ 1346(b) and 2671-2680, and that he

must initiate the suit within six months of the mailing of the

notice. (Id.) Further, the DVA advised that the proper party

defendant is the United States, not the DVA. (Id.)

The crux of plaintiff’s factual allegations regarding

treatment he received at the Brooklyn VA’s office is found on

pages eight to thirteen of the 106-page amended complaint.1

After suffering a hemorrhagic stroke while working as

an army doctor, plaintiff left the United States Army and sought

medical and psychiatric care from the DVA. (Id. at 8-9.)

Plaintiff was assigned to a physician, “James J. Peters VAMC,”

affiliated with the Mount Sinai School of Medicine, who placed

plaintiff in rehabilitation therapy. (Id. at 9.) Plaintiff

sought care from “Mr. Schoenfeld, Mark, LMSW” at the New York

Harbor Healthcare System VAMC and an unspecified “myriad of VA

doctors.” (Id.) Plaintiff further alleges that he was assigned

to three psychiatrists (Dr. Westmoreland, N., MD, Dr. Maayan,

L., MD, and Dr. Silverman, K., DO) as well as two social

workers. (Id.) Plaintiff alleges, without elaboration, that

two of his psychiatrists “behaved in weird manners” and that

“[o]ne had an outburst of madness[.]” (Id.) Plaintiff also

alleges that he called the Veteran Crisis Hotline for help and

was admitted to an emergency ward, for a 72-hour observation

hold due to his being “in crisis.” (Id.)

Subsequently, plaintiff called his psychiatrist, Dr.

Westmoreland, MD, who completed plaintiff’s forms so that he

1 The court assumes the truth of the allegations in the complaint for purposes

of this Memorandum and Order.

could qualify as a disabled student for purposes of his MBA

online studies. (Id. at 10.) On or about June 29, 2016,

plaintiff received his MBA degree. (Id.) Plaintiff notes that

he continues to seek treatment with his social worker, Rebecca

Mitchell, LMSW. (Id.) Plaintiff alleges that he and Ms.

Mitchell “spoke briefly” about his upcoming meeting with

Magistrate Judge Bloom. Without identifying an act or omission

of defendant, plaintiff alleges, “It is my continuation of

belief that this was further evidence that a Breach of Duty owed

to myself was continuing. [Ms. Mitchell], as well as her

colleague, Mr. Ahmed, Foyzul, LCSW-R, breached the duty I am

owed with helping my reintegration back into our civilian

society.”2 (Id. at 11.) Plaintiff also stated, “I remain

confused by what I see as an uninterested stance into my mental

and physical wellbeing along with a continued inference that I

am stupid and do not remember what was verbally told to myself

nor how my VA doctors and social workers have acted both

verbally, as well as physically, affecting my mental stability.

It is insulting and I have shared this feeling with the various

VA agents charged with my health care.” (Id.) Plaintiff also

2 Elsewhere in the amended complaint, plaintiff alleges that Ms. Mitchell and

Mr. Foyzul have provided him with excellent care. (Id. at 49 (“I am happy to

report that I believe myself to be receiving excellent care under the

services provided of Ms. Michell . . . and her supervisor, Mr. Foyzul, Ahmed

LCSW”); at 20 (“[Ms. Mitchell] has helped and is helping with my re-

integration and control of the violent emotions that continue to infect my

being.”).

alleges that he has called the police regarding his mistrust of

the Brooklyn VA, but also thinks that “the 911 Police have no

jurisdiction on the federal land” on which the Brooklyn VA’s

office allegedly sits. (Id.) Plaintiff has also attempted to

contact President Trump and the United States Senators for New

York about his distress. (Id. at 12.)

Plaintiff alleges that “the constant non recognition

of my plight to be heard along with the constant verbal claim

that I can’t be helped by the various VA agents” contributes to

his “severe emotional distress.” (Id. at 11-12.) Plaintiff

further alleges that the care he received at the Brooklyn VA has

been “subpar for helping [him] overcome [his] many social and

mental adversities,” and that “it is wanted that [he] commit

suicide.” (Id. at 12.) Plaintiff seeks $100 million in damages

for the Brooklyn VA’s negligent care. (Id. at 13.)

On October 15, 2019, the government filed a letter

informing the court that defendant intended to move to dismiss

plaintiff’s amended complaint for failure to state a claim upon

which relief can be granted. (ECF No. 15, Status Report.)

Accordingly, Judge Bloom set a briefing schedule for defendant’s

proposed motion to dismiss. On February 18, 2020, defendant

United States of America (“defendant”) filed its motion to

dismiss the complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure (the “Motion”). (ECF Nos. 17, Mot. to

Dismiss; 19, Reply in Support of Mot.) Plaintiff submitted two

affidavits in opposition to the government’s Motion. (ECF No.

18, Affidavit/Declaration in Opposition.)

LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

“To survive a motion to dismiss [pursuant to Rule

12(b)(6)], a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“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. A complaint must provide more than “labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555

(citations omitted).

When considering a motion to dismiss pursuant to Rule

12(b)(6), a court must accept all factual allegations in the

complaint as true and draw all reasonable inferences in favor of

the plaintiff. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d

184, 191 (2d Cir. 2007). The court’s function on a motion to

dismiss is “not to weigh the evidence that might be presented at

a trial but merely to determine whether the complaint itself is

legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d

Cir. 1985). Thus, to survive dismissal, a plaintiff must plead

“factual allegations sufficient to raise a right to relief above

the speculative level.” ATSI Commc’ns Inc. v. Shaar Fund, Ltd.,

493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at

555).

On a Rule 12(b)(6) motion, matters outside the

pleadings are not properly considered. See Friedl v. City of

New York, 210 F.3d 79, 83 (2d Cir. 2000) (“[W]hen matters

outside the pleadings are presented in response to a 12(b)(6)

motion, a district court must either exclude the additional

material and decide the motion on the complaint alone or convert

the motion to one for summary judgment under Fed. R. Civ. P. 56

and afford all parties the opportunity to present supporting

material.”) (internal quotation marks and citation omitted).

Fed. R. Civ. P. 12(d); Kopec v. Coughlin, 922 F.2d 152, 155 (2d

Cir. 1991) (a district court errs when it relies on factual

allegations contained in legal briefs or memoranda in ruling on

a 12(b)(6) motion to dismiss). Accordingly, the court does not

rely on any factual allegations contained in plaintiff’s

affidavits in opposition to defendant’s Rule 12(b)(6) motion to

dismiss.

The court is mindful that “[a] document filed pro se

is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (internal quotation marks and citations

omitted). If a liberal reading of the complaint “gives any

indication that a valid claim might be stated,” the court must

grant leave to amend the complaint. See Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000).

B. FTCA Liability and Negligent Infliction of Emotional

Distress

Under the FTCA, Congress “waived the sovereign

immunity of the United States for certain torts committed by

federal employees.” Hernandez v. United States, 939 F.3d 191,

198 (2d Cir. 2019) (quoting FDIC v. Meyer, 510 U.S. 471, 475

(1994). “[T]o be actionable under [the FTCA], a claim must

allege, inter alia, that the United States ‘would be liable to

the claimant’ as ‘a private person’ ‘in accordance with the law

of the place where the act or omission occurred.’” Hernandez,

939 F.3d at 198; see 28 U.S.C. § 2674. Thus, New York state

substantive law governs plaintiff’s claim based on a negligent

infliction of emotional distress (“NIED”) theory, which is

brought under the FTCA. Hernandez, 939 F.3d at 198; Mortise v.

United States, 102 F.3d 693, 696 (2d Cir. 1996); Metzen v.

United States, 19 F.3d 795, 807 (2d Cir. 1994).

Thus, in the absence of a physical or economic injury,

a plaintiff “may establish [a claim for NIED] in one of two

ways: (1) the ‘bystander theory’;3 or (2) the ‘direct duty

theory.’” Mortise v. United States, 102 F.3d 693, 696 (2d Cir.

1996). Under the direct duty theory, a plaintiff “may recover

for NIED by showing a breach of a duty of care resulting

directly in emotional harm . . . even though no physical injury

occurred, as long as the mental injury is a direct, rather than

a consequential, result of the breach, and the claim . . .

possess[es] some guarantee of genuineness.” Mortimer v. City of

New York, 15-CV-7186 (KPF), 2018 U.S. Dist. LEXIS 53492, at *79

(S.D.N.Y. Mar. 29, 2018) (internal quotation marks and citation

omitted); see also Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir.

2000) (“New York recognizes a cause of action where there is ‘an

especial likelihood of genuine and serious mental distress,

arising from . . . special circumstances, which serves as a

guarantee that the claim is not spurious.’”); J.H. v. Bratton,

248 F. Supp. 3d 401, 416 (E.D.N.Y. 2017) (finding that the

mishandling of a corpse or the transmission of false information

3 “A plaintiff may recover for a purely emotional injury under the ‘bystander’

theory when: (1) [he] is threatened with physical harm as a result of

defendant's negligence; and (2) consequently [he] suffers emotional injury

from witnessing the death or serious bodily injury of a member of [his]

immediate family.” Mortise, 102 F.3d at 696. The court agrees with

defendant that the bystander theory is inapplicable here because plaintiff

does not allege that he witnessed the death or serious bodily injury of a

member of his immediate family.

that a parent or child has died to have the propensity to cause

extreme emotional distress); Howard v. Lecher, 42 N.Y.2d 109,

111-12 (stating that “there may be recovery for [] emotional

harm, even in the absence of fear of potential physical injury .

. . so long as the psychic injury was genuine, substantial, and

proximately caused by the defendant’s conduct”).

Alternatively, the genuineness requirement of an NIED

claim may be met by a showing that defendant’s breach of the

duty owed to plaintiff unreasonably endangered plaintiff’s

physical safety or caused plaintiff to fear for his physical

safety. J.H., 248 F. Supp. 3d at 416; Mortise, at 696. “The

unreasonable endangerment element . . . involves an objective

inquiry turning on whether a plaintiff’s physical safety

actually was endangered, not a subjective evaluation dependent

on the plaintiff’s state of mind.” Carney v. Boston Mkt., 18-

CV-713 (LGS), 2018 U.S. Dist. LEXIS 214453, at *7 (S.D.N.Y. Dec.

20, 2018). “New York courts have expressed a ‘longstanding

reluctance to recognize causes of action for negligent

infliction of emotional distress, especially in cases where the

plaintiff suffered no independent physical or economic injury.’”

Colo. Capital Investments, Inc. v. Owens, 304 F. App’x 906, 908

(2d Cir. 2008).

DISCUSSION

At the outset, the court notes that plaintiff’s 106-

page amended complaint includes approximately 90 pages of

irrelevant material, including photographs, (Am. Compl. at 37,

64-70), a marked-up page out of the Warrior Transition Battalion

Handbook, (id. at 38), biographies of United States Senators

Kirsten Gillibrand and Charles Schumer, (id. at 52-53), and

plaintiff’s resume (id. at 78-84). None of these miscellaneous

materials, which were included in the amended complaint, either

individually or in the aggregate, state a claim to relief.

As the Second Circuit has acknowledged, “[u]nnecessary

prolixity in a pleading places an unjustified burden on the

court and the party who must respond to it because they are

forced to select the relevant material from a mass of verbiage.”

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also

Fed. R. Civ. P. 12(f) (authorizing a court to strike “any

redundant, immaterial, impertinent, or scandalous matter”). Due

to plaintiff’s pro se status, however, the court has extended

“special solicitude” and a liberal construction to plaintiff’s

amended complaint, interpreting it to raise the strongest claims

that it suggests. Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.

2013). Even under a very liberal reading of the pro se

plaintiff’s amended complaint, the court finds that plaintiff

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

for the reasons set forth below. Accordingly, the court

dismisses the complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

Plaintiff’s various NIED-related allegations against

the Brooklyn VA and the conduct of his psychiatrists and social

workers are vague, conclusory, fail to state a claim, and at

times, contradict plaintiff’s own allegations of negligent or

uncaring conduct by Brooklyn VA employees. For instance,

plaintiff’s allegations that a Veteran Crisis Hotline agent “did

not seem to want to help,” that his VA psychiatrist, Dr.

Westmoreland, “sounded uninterested and annoyed” when he called

her to tell her about his issues, and that two of his three

assigned psychiatrists “behaved in weird manners,” are

conclusory, devoid of facts, and fail to state a cognizable NIED

claim. (ECF No. 14 at 9). Plaintiff also alleges, in

conclusory fashion, that the social workers assigned to him,

Rebecca Mitchell and Foyzul Ahmed, “breached the duty [he is]

owed with helping [his] reintegration back into [] civilian

society” and adopted an “uninterested stance into [his] mental

and physical wellbeing.” (ECF No. 14 at 11-12.)

Plaintiff’s remaining factual allegations are

similarly vague. He alleges that his doctors and social workers

made a “continued inference that [he is] stupid and do[es] not

remember what [is] verbally told to [him]” and that they “have

acted both verbally, as well as physically, affecting [his]

mental stability.” (Id. at 11.) Plaintiff alleges that his

“plight” has not been recognized and that various VA agents have

made the “constant verbal claim that [he] can’t be helped.”

(Id. at 12.) He further alleges, “It is my belief that it is

wanted that I commit suicide,” without identifying any words or

conduct by the Brooklyn VA employees to substantiate his belief.

(ECF No. 14 at 12.) As correctly stated by the government,

plaintiff’s lack of specificity in alleging facts to support his

NIED claim is fatal to his amended complaint.

Further undermining plaintiff's NIED claim are the

contradictory allegations in his amended complaint that his

social workers’ care and treatment have been excellent, and

various employees of the Brooklyn VA have told plaintiff not to

commit suicide. Specifically, plaintiff notes that his social

worker, Ms. Mitchell, “tries to be encouraging by reassuring

[me] that she is not trying to have [me] commit Suicide.” (ECF

No. 14 at 12.) Furthermore, plaintiff states in his amended

complaint that Ms. Mitchell “has helped and is helping with

[his] reintegration and control of the violent emotions that

continue to infect [his] being.” (Id. at 20.) Plaintiff also

states that he “believe[s] [himself] to be receiving excellent

care under the services provided of Ms. Mitchell, Rebecca . . .

[and] Mr. Foyzul, Ahmed, LCSW.” (Id. at 49.)

Given plaintiff’s confusing and contradictory

allegations, the court does not find that plaintiff’s belief,

that the Brooklyn VA would like plaintiff to commit self-harm,

to be plausible. Further, plaintiff’s disjointed and outlandish

allegations may be an unfortunate result of plaintiff’s

established psychological issues, which supported his successful

application for Social Security Disability Insurance benefits.

As previously noted, plaintiff was determined, by the Social

Security Administration, to have been disabled since July 20,

2007 due to cognitive and psychological deficits. Following

plaintiff’s hemorrhagic stroke and brain surgery in 2007,

plaintiff began to suffer from, inter alia, paranoid delusions,

as well as memory and concentration problems.

Although the court sympathizes with plaintiff’s

evident emotional distress and frustration, the court finds that

plaintiff has failed to allege an actionable NIED claim against

defendant. In particular, based on the amended complaint,

plaintiff has failed to allege plausible facts that demonstrate

defendant’s breach of a duty of care or a “genuine” claim of

severe mental distress caused by defendant’s breach of a duty of

care.4 Baker, 239 F.3d at 421; Howard, 42 N.Y.2d at 111-12. In

addition, plaintiff has failed to rebut defendant’s contention

4 Plaintiff appears to confuse the genuineness of his claims with the

genuineness of his veteran status and disability. (ECF No. 18, First Pl.

Aff. ¶ 10; ECF No. 18-1, Second Pl. Aff. ¶ 9.)

that plaintiff has not presented any plausible allegations tying

the defendant’s alleged conduct to his alleged injury. Further,

plaintiff has failed to allege any words or physical conduct, on

the part of defendant or its employees that, viewed objectively,

caused plaintiff to reasonably fear for his physical safety.

Carney, 2018 U.S. Dist. LEXIS 214453, at *7. The numerous

claims that plaintiff has lodged regarding his treatment by the

Brooklyn VA are simply too vague, conclusory or otherwise

irrelevant to be sustained in a cause of action.

Further, as defendant correctly noted, “Where

plaintiff’s own pleadings are internally inconsistent, a court

is neither obligated to reconcile nor accept the contradictory

allegations in the pleadings as true in deciding a motion to

dismiss.” Carson Optical Inc. v. eBay Inc., 202 F. Supp. 3d

247, 255 (E.D.N.Y. 2016) (internal citation and quotations

omitted); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1095

(2d Cir. 1995) (affirming dismissal of the complaint where

plaintiff’s “attenuated allegations” were “contradicted [] by

more specific allegations in the complaint”); Salahuddin v.

Jones, 992 F.2d 447, 449 (2d Cir. 1993) (dismissing claim that

is based on “wholly conclusory and inconsistent allegations”).

Finally, the court has considered providing plaintiff

with a second opportunity to amend his pleadings to cure the

existing defects, but has decided that doing so would be futile.

Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (an

amendment is futile if it cannot survive a Rule 12(b)(6) motion

to dismiss). Because the court finds that further amendments

would be futile, and the court has previously given plaintiff an

opportunity to amend, the court will not grant plaintiff another

opportunity to amend his pleadings.

CONCLUSION

For the reasons set forth above, the court GRANTS

defendant’s motion to dismiss the complaint with prejudice. The

court certifies pursuant to 28 U.S.C. Section 1915(a)(3) that

any appeal would not be taken in good faith and, therefore, in

forma pauperis status is denied for the purpose of any appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The

Clerk of Court is respectfully directed to enter judgment in

favor of defendant, close the case, mail a copy of this

Memorandum and Order and the judgment to plaintiff and note

service on the docket.

SO ORDERED.

Dated: June 15, 2020

Brooklyn, New York

_________/s/_________________

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York