The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT D. SANTORO,
Plaintiff,
v. Case No. 8:24-cv-2398-WFJ-TGW
DAVID K. DUNNING,
EXECUTIVE DIRECTOR
JAMES A. HALEY VA HOSPITAL,
Defendant.
_______________________________/
ORDER
Before the Court is the Government’s motion to dismiss the amended
complaint. Dkt. 15. After careful consideration of the arguments of the parties and
the allegations of the amended complaint and supplement (Dkts. 14, 18), the Court
grants the motion without leave to further amend.
In state court, Plaintiff Robert David John Santoro sued David K. Dunning,
as the executive director of the James A. Haley Veterans Hospital in Hernando
County, Florida, for “injunctive relief” and “VA negligence.”1 Dkt. 1-1; Dkt. 14 at
2–3. Defendant removed this action to federal court pursuant to 28 U.S.C. §
1442(a)(1). Dkt. 1. This Court permitted Plaintiff to file an amended complaint,
which Defendant now moves to dismiss for lack of subject matter jurisdiction
1 “VA” stands for the Department of Veterans Affairs.
under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim for
relief under Rule 12(b)(6).
Allegations
Plaintiff asserts in the amended complaint that this cause of action seeks
injunctive relief to address the VA’s pattern of abuse and negligence in failing to
follow various VHA directives and, specifically, to appoint an independent doctor
to supervise his healthcare. Dkt. 14 at 2, 5, 6. The amended complaint provides in
relevant part:
[T]his is not a Malpractice claim. . . . My Petition for Injunctive Relief
is NOT a claim for monetary damages, . . .[but] state[s] a claim based
on VA negligence. . . . I made the single allegation that the VA was
guilty of a pattern of abuse and negligence.
. . . .
[T]he remedy is the relief I seek; an Independent doctor to supervise
my health care.
Dkt. 14 at 2, 5, 6.
Mr. Santoro argues that one count is all that is necessary to state his claim
for an injunction to appoint an independent medical doctor. Dkt. 14 at 3, 4 (taking
issue with this Court’s order at Dkt. 11 at 2, which found the initial complaint an
impermissible shotgun pleading under Weiland v. Palm Bch. Cnty. Sheriff’s Office,
792 F.3d 1313, 1323 (11th Cir. 2015)). He reasons that a “pattern of abuse and
negligence” is made up of examples of abuse and negligence, which should be
limited to one count only. Dkt. 14 at 3–4. He continues that each of the thirty
examples “was from a specific incident involving one particular doctor, not
multiple doctors.” Id. at 4.
Mr. Santoro makes clear that he did not intend to sue anyone for medical
negligence. He brings this action against only one Defendant—David K. Dunning.
Dkt. 14 at 5. He has “not accused [Dunning] of Malpractice or Negligence, neither
is this a claim of Supervisory Liability.” Id. at 5. The amended complaint alleges
that Director Dunning “failed to follow the [required] standards of care” of a VA
medical facility director. Id. at 5. Some of the several directives not adhered to
include timely reporting adverse drug events, disclosing them to patients, recording
patient safety adverse events, directing investigation of same, and ensuring
caregivers and veterans understand the medication treatment plan. Id. at 5–6.
Plaintiff claims none of these directives were followed in his case with his
particular medical conditions. Id. at 6.
To remedy the situation, Mr. Santoro seeks one remedy: selection or
appointment of an independent doctor to supervise his health care. Id. at 6 ¶ 24.
Failure to Appoint Supervisory Doctor as a Benefits Issue
Judicial review of a veteran’s eligibility for or entitlement to benefits is
covered by the Veterans Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a). The
Secretary of the VA is charged with deciding “all questions of law and fact
necessary to a decision . . . under a law that affects the provision of benefits.” Id. §
511(a). The Secretary’s decision is final and “may not be reviewed by any other
official or by any other court.” Id. § 511(a).
Although substantive benefits determinations, including all questions of law
or fact that bear on such decisions, are not beyond judicial review, the review
process of those questions is limited to the VA’s administrative appeals process.
See Smith v. U.S., 7 F.4th 963, 975 (11th Cir. 2021). The specific appeals process
begins with the Board of Veterans’ Appeals, 38 U.S.C. § 7104(a), next moves to
the United States Court of Appeals for Veterans Claims, id. at §§ 7252(a), 7266(a),
then to the United States Court of Appeals for the Federal Circuit, id. at § 7292(a),
(c), and finally to the Supreme Court, id. at § 7292(c). See Peeples v. U.S. Dep’t of
Veterans Affs., No. 8:16-cv-528-T-23-AAS, 2016 WL 7383357, at *3 (M.D. Fla.
Nov. 30, 2016) (citing Hall v. U.S. Dep’t of Veterans Affs., 85 F.3d 532, 534 (11th
Cir. 1996)).
A “benefit” is defined as “any payment, service, . . . entitlement to which is
determined under laws administered by the [VA] . . . .” 38 C.F.R. § 20.3(e)
(emphasis added). Services include “medical services which the Secretary
determines to be needed” for certain veterans. 38 U.S.C. § 1710(a)(1). If allowing
an independent doctor to supervise one’s healthcare is in the nature of a “benefit”
or service from the VA, then the VJRA applies, and this Court has no subject
matter jurisdiction. Milbauer v. U.S., 587 F. App’x 587, 590 (11th Cir. 2014)
(“Milbauer I) (unpublished).
In Milbauer I, a veteran, Mr. Milbauer, injured his right shoulder and
requested his prescribed MRI be conducted in an open, as opposed to closed, MRI
machine due to his claustrophobia. 587 F. App’x at 588. The VA medical center
did not have an open MRI machine. After the ten-month wait for an open MRI in a
non-VA facility, the surgery was unsuccessful. In Mr. Milbauer’s administrative
claim with the VA, he alleged that the VA wholly failed to both assist him in
scheduling an open MRI and in following the applicable VA policy concerning
staff ordering medical tests at non-VA institutions. Id. at 588–89.
Milbauer I held that the district judge “could not have adjudicated
Milbauer’s claim without first determining whether he was entitled to have an
outside MRI and whether the Brooklyn VA properly followed its policy in
processing his request.” Milbauer v. U.S., 636 F. App’x 556, 559 (11th Cir. 2016)
(“Milbauer II”), citing Milbauer I, 587 F. App’x at 591–92. Because the “delayed
MRI” claim presented a benefits entitlement determination, the VJRA barred
review. Milbauer II, 636 F. App’x at 559, 561.
Likewise, the VJRA bars this Court from deciding whether Mr. Santoro is
entitled to a particular benefit—an outside doctor, paid for by the VA, to manage
his healthcare. He additionally seeks a determination of whether the Hernando
County VA followed its internal policy and VA directives when it failed to provide
an independent doctor. Plaintiff readily admits that he does not bring a claim for
medical malpractice; rather, he alleges general negligence against the director and
personnel in failing to appoint a supervisory doctor. Even if his claim does not fall
squarely under a denial of benefits, he alleges the negligent handling by VA
personnel in failing to provide the doctor, which is still barred under the VJRA.
See Kumnick v. U.S., No. 8:05-cv-1511-JDW-MAP, 2007 WL 4614771, at *3
(M.D. Fla. Dec. 31, 2007). Indeed, Plaintiff “may not circumvent [Section
511(a)’s] bar on judicial review by cloaking his claims regarding the denial of
benefits in the garb of a negligence claim or other statutory violation.” Workman v.
U.S., No. 8:17-cv-3010-T-AEP, 2018 WL 8332696, at *3 (M.D. Fla. July 18, 2018)
(quoting Kumnick, 2007 WL 4614771, at *5). Accordingly, this Court lacks
subject matter jurisdiction over Plaintiff’s claims.
Federal Tort Claims Act—Exhaustion/Statute of Limitations
Mr. Santoro asserts that he brings a “VA negligence” claim. He alleges
violations of the standard of care provided by his medical providers at the VA. See
Dkt. 1-1 at 8–14. A medical negligence claim is actionable against the United
States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). See
Smith, 7 F.4th at 973. Even if these claims are considered negligence claims under
the FTCA, Defendant argues that this Court lacks subject matter jurisdiction
because 1) Plaintiff failed to exhaust his administrative remedies, and 2) the statute
of limitations has expired.
A condition precedent to filing a lawsuit against the United States is
submitting an administrative claim directly with the agency, here the VA. 28
U.S.C. § 2675(a). After a plaintiff files a claim, he must wait until either the
agency finally denies the claim or wait at least six months after filing the claim
with the agency before filing suit. Id. A federal court does not have “jurisdiction
over a suit under the FTCA unless the claimant first files an administrative claim
with the appropriate agency . . . within two years from the time the claim accrues.”
Dalrymple v. U.S., 460 F.3d 1318, 1324 (11th Cir. 2006), citing 28 U.S.C. §§ 2675,
2401(b) and 28 C.F.R. § 14.2(a). If the statutory requirements under the FTCA are
not met, then the court lacks subject matter jurisdiction and dismissal is
appropriate. Dalrymple, 460 F.3d at 1326.
Mr. Santoro lists 14 prior administration claims he submitted to the VA
beginning with August 24, 1996, and ending with December 30, 2011. Dkt. 14 ¶ 2.
As Defendant points out, Plaintiff filed a medical malpractice action under the
FTCA in 1999: Santoro v. U.S., No. 8:99-cv-575-JDW (M.D. Fla.). Some of the
medical conditions and claims alleged in this instant action appear to have been
addressed in the 1999 action—thyroid issues (dating back to 1967), alleged post-
traumatic stress disorder, and myasthenia gravis (diagnosed in 1996). See Santoro,
No. 8:99-cv-575-JDW, at Dkt. 37. Plaintiff fails to allege any more recent
administrative claims than one filed with the VA in 2011.
Because Plaintiff cannot point to a more recent administrative claim, he
cannot maintain a negligence action here. Defendant’s removal of his state court
complaint to this federal court has nothing to do with the legal concept of
exhaustion of remedies, contrary to Plaintiff’s assertion. See Dkt. 18 (equating
removal of state court case with preventing Plaintiff from exhausting his claims).
Plaintiff has failed to satisfy the exhaustion requirement, and he may not now
proceed with a lawsuit.
Turning to the statute of limitations, a tort claim against the United States is
barred “unless it is presented in writing to the appropriate Federal agency within
two years after such claim accrues or unless the action is begun within six months
after . . . notice of final denial by the agency . . . .” 28 U.S.C. § 2401(b). A claim
is presented when the agency receives a Standard Form 95 (SF-95) or other written
notification of an incident. 28 C.F.R. § 14.2. A cause of action for medical
malpractice accrues “when the plaintiff is, or in the exercise of reasonable
diligence should be, aware of both [his or] her injury and its connection with some
act of the defendant.” Price v. U.S., 775 F.2d 1491, 1494 (11th Cir. 1985) (citing
United States v. Kubrick, 444 U.S. 111, 122 (1979)). After a claim is submitted to
the agency, the plaintiff must wait until either 1) the agency denies the claim or 2)
six months have passed after the claim is filed. 28 U.S.C. § 2675(a).
Based on the face of operative complaint, or even the initial complaint,
Plaintiff has not alleged that he has filed an administrative claim with the VA since
2011. Nor can it be established that he submitted an administrative claim within
two years from the time that claim accrued, much less that any such claim has been
finally denied by the VA or six months have passed since he filed such a claim with
the VA. This Court lacks jurisdiction over any claims to the extent they allege
negligence committed by his VA medical providers.
Accordingly, Defendant’s motion to dismiss (Dkt. 15) is granted. This
action is dismissed without prejudice and without leave to amend. The Clerk is
directed to close the case.
DONE AND ORDERED at Tampa, Florida, on February 12, 2025.
me,
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Plaintiff, pro se
Counsel of record