Sparks v. United States

In the United States Court of Federal Claims

No. 20-635C

Filed: February 4, 2021

NOT FOR PUBLICATION

)

ROBERT A. SPARKS, )

)

Plaintiff, ) Pro se; RCFC 12(b)(1); Subject-Matter

) Jurisdiction; Tort Claims; Veterans

v. ) Benefits; RCFC 12(b)(6); Failure To State

) A Claim.

THE UNITED STATES, )

)

Defendant. )

)

Robert A. Sparks, Leonardtown, MD, plaintiff pro se.

Margaret J. Jantzen, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.

Kirschman, Jr., Director, Ethan P. Davis, Acting Assistant Attorney General, Commercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for

defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff pro se, Robert A. Sparks, brings this action against the United States alleging

that he contracted an infection after undergoing a dental procedure performed at a United States

Department of Veterans Affairs (the “VA”) dental clinic. See generally Compl. As relief,

plaintiff seeks to recover $5 million in monetary damages from the United States. Id. at ¶ 3.

The government has moved to dismiss this matter for lack of subject-matter jurisdiction

and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and

(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def.

Mot. Plaintiff has also filed a motion to proceed in this matter in forma pauperis. See generally

Pl. Mot. For the reasons set forth below, the Court: (1) GRANTS the government’s motion to

dismiss; (2) GRANTS plaintiff’s motion to proceed in forma pauperis; and (3) DISMISSES the

complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff, pro se, Robert A. Sparks, is a United States Army veteran. Pl. Resp. at 1. In

the complaint, plaintiff alleges that he contracted an infection after undergoing a dental

procedure performed at a VA dental clinic located in Washington, DC. See Compl. at ¶¶ 1, 3.

As relief, plaintiff seeks to recover $5 million in monetary damages from the government. Id. at

¶ 4.

Specifically, plaintiff alleges that, on September 22, 2017, he received a tooth filling at a

VA dental clinic and that he “started getting sick” after the procedure and “was really sick” by

the time he got home. Id. at ¶¶ 1, 3. Plaintiff also alleges that, on September 24, 2017, he was

admitted to the Surgical Intensive Care Unit at the VA Medical Center in Washington, DC and

underwent surgery. See id. at ¶ 3.

In addition, plaintiff alleges that a doctor subsequently told him that his infection had

been caused by his tooth filling procedure. See id. And so, plaintiff seeks monetary damages

from the government as compensation for “what [the VA has] done” and recovery for “pain

[and] suffering . . . in the amount of . . . five million dollars . . . .” Id. at ¶ 4.

B. Procedural History

Plaintiff commenced this action and filed a motion to proceed in forma pauperis on May

18, 2020. See generally Compl.; Pl. Mot. On July 19, 2020, the government filed a motion to

dismiss this matter, pursuant to RCFC 12(b)(1) and (6). See generally Def. Mot.

On August 12, 2020, plaintiff filed a response to the government’s motion to dismiss.

See generally Pl. Resp. On August 26, 2020, the government filed a reply in support of its

motion to dismiss. See generally Def. Reply.

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The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the

government’s motion to dismiss (“Def. Mot.”); and plaintiff’s response thereto (“Pl. Resp.”). Unless

otherwise noted herein, the facts recited are undisputed.

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These matters having been fully briefed, the Court resolves the pending motions.

III. LEGAL STANDARDS

A. Pro Se Litigants

Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the

Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App’x 919,

926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.

2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to survive

a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to

plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

(holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent

standards than formal pleadings drafted by lawyers”); Matthews v. United States, 750 F.3d 1320,

1322 (Fed. Cir. 2014). But, there “is no duty on the part of the trial court to create a claim which

[the plaintiff] has not spelled out in his pleading.” Lengen v. United States, 100 Fed. Cl. 317,

328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin v. United

States, 33 Fed. Cl. 285, 293 (1995)).

Given this, while “a pro se plaintiff is held to a less stringent standard than that of a

plaintiff represented by an attorney . . . the pro se plaintiff, nevertheless, bears the burden of

establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States,

93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.

2002)). And so, the Court may excuse ambiguities, but not defects, in the complaint. Colbert v.

United States, 617 F. App’x 981, 983 (Fed. Cir. 2015) (“No plaintiff, pro se or otherwise, may be

excused from the burden of meeting the [C]ourt’s jurisdictional requirements.”) (citing Kelley v.

Sec’y of Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)) (emphasis added); see also

Demes v. United States, 52 Fed. Cl. 365, 368 (2002) (“Pro se litigants are not immune from laws

and rules of procedure simply on the basis of their pro se status.”) (citation omitted).

B. RCFC 12(b)(1)

When deciding a motion to dismiss for lack of subject-matter jurisdiction, this Court must

assume that all undisputed facts alleged in the complaint are true and must draw all reasonable

inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); United

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Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); RCFC 12(b)(1).

Plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so by a

preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). And so, should the Court determine that “it lacks jurisdiction over the subject

matter, it must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006)

(citing RCFC 12(h)(3)).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and “possess[es] only that power authorized by Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the Court

jurisdiction over:

[A]ny claim against the United States founded either upon the Constitution,

or any Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). The Tucker Act is, however, “a jurisdictional statute; it does not create

any substantive right enforceable against the United States for money damages. . . . [T]he Act

merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the

substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a

substantive right against the United States under the Tucker Act, a plaintiff must identify and

plead a money-mandating constitutional provision, statute, or regulation; an express or implied

contract with the United States; or an illegal exaction of money by the United States. Cabral v.

United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.

Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes if it ‘can

fairly be interpreted as mandating compensation for damages sustained as a result of the breach

of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (brackets existing) (quoting United States

v. Mitchell, 463 U.S. 206, 217 (1983)).

Specifically relevant to this matter, it is well-established that this Court does not possess

subject-matter jurisdiction to review tort claims. 28 U.S.C. § 1491(a)(l); see also Keene Corp. v.

United States, 508 U.S. 200, 214 (1993) (“[T]ort cases are outside the jurisdiction of the Court of

Federal Claims today.”); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343

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(Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the Court of Federal

Claims jurisdiction claims sounding in tort.”); Hernandez v. United States, 96 Fed. Cl. 195, 204

(2010). And so, the Court must dismiss tort claims for lack of subject matter jurisdiction.

In addition, this Court has also recognized that “[c]laims for veterans’ benefits are not

within the jurisdiction of the Court of Federal Claims.” See, e.g., Berkowitz v. United States, No.

07-328C, 2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) (quoting Van Allen v. United States,

66 Fed. Cl. 294, 296 (2005)). And so, “[d]isputes concerning veterans’ benefits are handled

internally by the VA” at the Board of Veterans Appeals, “with appeal to the United States Court

of Appeals for Veterans Claims.” Berkowitz, 2014 WL 4387851, at *4; see 38 U.S.C. §§ 7105,

7252.

C. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief

can be granted pursuant to RCFC 12(b)(6), this Court similarly assumes that all undisputed facts

alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s

favor. See Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017) (citing

Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And so, to survive a motion

to dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When the complaint fails to “state a claim to relief that is plausible on its face,” the Court

must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,

“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and

determine whether it is plausible, based upon these facts, to find against the defendant. Id. at

678-79 (“A claim has facial plausibility when the pleaded factual content allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

IV. LEGAL ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction

pursuant to RCFC 12(b)(1), upon the grounds that the Court does not possess subject-matter

jurisdiction to consider plaintiff’s tort and veterans’ benefits claims. Def. Mot. at 3-4. The

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government has also moved to dismiss this matter for failure to state a claim upon which relief

may be granted pursuant to RCFC 12(b)(6), upon the ground that plaintiff has failed to plausibly

allege a breach of contract claim against the government. See id. at 4-5. Plaintiff has also

moved to proceed in this matter in forma pauperis. See generally Pl. Mot.

For the reasons discussed below, the Court does not possess subject-matter jurisdiction to

consider plaintiff’s tort and veterans’ benefits claims. Plaintiff has, however, satisfied the

statutory requirements to proceed in this matter without paying the Court’s filing fee. And so,

the Court: (1) GRANTS the government’s motion to dismiss; (2) GRANTS plaintiff’s motion

to proceed in forma pauperis; and (3) DISMISSES the complaint.

A. The Court May Not Consider Plaintiff’s Tort Claims

As an initial matter, the Court must dismiss plaintiff’s claim alleging that he contracted

an infection after undergoing a dental procedure performed at a VA dental clinic located in

Washington, DC, because this claim sounds in tort. It is well-established that the Tucker Act

expressly excludes tort claims from the jurisdiction of this Court. 28 U.S.C. § 1491(a)(1) (“The

United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim

against the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.”) (emphasis

added); see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.

2008) (“[t]he plain language of the Tucker Act excludes from the Court of Federal Claims

jurisdiction claims sounding in tort”). In this case, plaintiff seeks to recover monetary damages

from the government for pain and suffering that he allegedly experienced as a result of

contracting an infection after undergoing the aforementioned dental procedure at a VA dental

clinic. Compl. at ¶¶ 1, 3-4. Because plaintiff’s claim sounds in tort, the Court DISMISSES this

claim for lack of subject-matter jurisdiction. Utley v. United States, 144 Fed. Cl. 573, 577 (2019)

(citing Gable v. United States, 106 Fed. Cl. 294, 298 (2012)); Mendez-Cardenas v. United States,

88 Fed. Cl. 162, 166 (2009) (holding that medical malpractice and negligence claims sound in

tort and are therefore not subject to this Court’s jurisdiction); RCFC 12(b)(1).

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B. The Court May Not Consider Plaintiff’s Veterans’ Benefits Claim

To the extent that plaintiff asserts a claim for veterans’ benefits in this case, the Court

must also dismiss this claim. It is well-established that this Court does not possess subject-

matter jurisdiction to consider veterans’ benefits claims, because the termination and recoupment

of veterans’ benefits falls within the sole purview of the VA. See, e.g., Berkowitz v. United

States, No. 07-328C, 2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) (citing Van Allen v.

United States, 66 Fed. Cl. 294, 296 (2005)); see also 38 U.S.C. §§ 7105, 7252. Plaintiff states in

the complaint that he seeks compensation for “what [the VA has] done.” Compl. at ¶ 4. To the

extent that plaintiff’s claim is a claim for veterans’ benefits, the Court must dismiss this claim for

lack of subject-matter jurisdiction. RCFC 12(b)(1).2

C. Plaintiff May Proceed In Forma Pauperis

As a final matter, plaintiff has moved to proceed in this matter in forma pauperis. See

generally Pl. Mot. This Court may authorize the commencement of a suit without prepayment of

fees when a plaintiff submits an affidavit including a statement of all assets, a declaration that he

or she is unable to pay the fees, and a statement of the nature of the action and a belief that he or

she is entitled to redress. See 28 U.S.C. § 1915(a)(1); see also id. § 2503(d). In his application

to proceed in forma pauperis, plaintiff indicates that he is not employed and that he is unable to

pay the Court’s filing fee. Pl. Mot. at 1. Given this, the Court concludes that plaintiff has

satisfied the statutory requirements to proceed in this matter in forma pauperis for the purpose of

resolving the government’s motion to dismiss.

V. CONCLUSION

In sum, the most generous reading of the complaint makes clear that the Court does not

possess subject-matter jurisdiction to consider any of plaintiff’s claims. In addition, plaintiff has

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The Court does not read the complaint to assert a breach of contract claim against the government.

Nonetheless, to the extent that plaintiff asserts a contract claim in the complaint, the government correctly

argues that plaintiff has not plausibly alleged a breach of contract claim against the United States in this

case. Def. Mot. at 4-5; see also Aboo v. United States, 86 Fed. Cl. 618, 626, aff’d, 347 F. App’x 581

(Fed. Cir. 2009) (quoting Cooley v. United States, 76 Fed. Cl. 549, 555-56 (2007) (holding that a plaintiff

must demonstrate the existence of a valid contract to prevail on a breach of contract claim against the

government)).

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satisfied the statutory requirements to proceed in this matter without paying the Court’s filing

fee.

And so, for the foregoing reasons, the Court:

1. GRANTS the government’s motion to dismiss;

2. GRANTS plaintiff’s motion to proceed in forma pauperis; and

3. DISMISSES the complaint.

The Clerk shall enter judgment accordingly.

Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

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