Opinion
Case No. CIV-18-1000-R
10-23-2018
DENTON WILLIAM GAGE, Plaintiff, v. ANGELA C. HOUSTON, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state inmate, filed a complaint under 42 U.S.C. § 1983 naming nine Oklahoma City Veterans Affairs Medical Center (OCVAMC) employees as Defendants. Doc. 1 & Ex. 1. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Doc. 4. For the reasons set forth below, the undersigned recommends the court dismiss the Plaintiff's complaint on screening.
I. Plaintiff's claims.
Plaintiff's complaint is anything but straightforward. He first seeks monetary relief, release from prison, and relief from his criminal charges, arguing that his rights to "appeal," "due process," "access to veterans benefits," and "to a fair trial" have been violated. Doc. 1, at 6. Then, in his attached statement of the facts, Plaintiff complains about the Oklahoma Department of Corrections "case management practices" and his various "absurd judgments" in state court. Id. Ex. 1, at 1-2. Turning finally to his allegations against the named Defendants, Plaintiff complains that the OCVAMC employees engaged in "joint negligence, affirmative misconduct, and malpractice," presumably while treating Plaintiff for mental health issues at the OCVAMC. Id. at 1-3.
Plaintiff sues Defendants in their official capacities only. Id. at 4.
II. Screening.
Because Plaintiff has sued government officials, see infra §§ II & III, the court has a duty to screen the complaint and dismiss any portion that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant immune from such relief. See 28 U.S.C. § 1915A(a), (b) (1)-(2).
III. The Unavailability of § 1983.
Plaintiff filed his complaint under § 1983, which provides a federal civil remedy for the deprivation of various rights by any person "acting under color of state law." McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011). The "under color of state law" element is "a jurisdictional requisite for a § 1983 action[.]" Polk Cty. v. Dodson, 454 U.S. 312, 315 (1981). However, the "[OC]VAMC [i]s a federal entity connected with the Department of Veterans Affairs[.]" Hensel v. Office of Chief Admin. Hearing Officer, 38 F.3d 505, 506 (10th Cir. 1994). And "[t]he Department of Veterans Affairs is an agency of the United States, not a state entity. As such, it never acts under color of state law." Vasquez v. Ayudando Guardians Inc., No. CV 16-00821 KG/LF, 2018 WL 922360, at *2 (D.N.M. Feb. 15, 2018)); Gage v. Dep't of Veteran Affairs/Okla. City Veterans Hosp., No. CV 18-082-RAW-SPS, 2018 WL 2069731, at *2 (E.D. Okla. May 3, 2018) (informing Plaintiff that the OCVAMC did not operate under color of state law for purposes of § 1983, because "[a] § 1983 action provides a cause of action against state officials, not federal agencies"). Because Plaintiff has identified Defendants as OCVAMC employees—i.e., federal employees—he cannot maintain a § 1983 action against them. IV. The Unavailability of Bivens.
Even construing Plaintiff's complaint liberally to plead a claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 395-97 (1971), a "landmark decision holding that plaintiffs may sue federal officials in their individual capacities for damages . . . even in the absence of an express statutory cause of action analogous to 42 U.S.C. § 1983," Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005), Plaintiff likewise lacks any available remedy. This is because the Tenth Circuit has concluded that the "VA Immunity Statute," 38 U.S.C. §§ 7316(a)(1), 7316(f), "provides an exclusive remedy that precludes a cause of action under Bivens for claims" involving medical malpractice and negligence against VA employees. Ingram v. Faruque, 728 F.3d 1239, 1245-52 (10th Cir. 2013). Accordingly, Plaintiff "may not pursue a cause of action under Bivens" against the OCVAMC Defendants. See id. at 1244.
Notably, Plaintiff sues Defendants in their official, not individual capacities, also precluding relief under Bivens. See Simmat, 413 F.3d at 1231 ("[A] Bivens claim lies against the federal official in his individual capacity-not, as here, against officials in their official capacity.").
V. Recommendation and notice of right to object.
Because Plaintiff does not have a basis for relief under either § 1983 or Bivens the undersigned recommends the court dismiss Plaintiff's complaint, Doc. 1, without prejudice. Adoption of this recommendation will moot Plaintiff's pending motions, Docs. 2, 7, and 8.
Plaintiff could potentially sue Defendants under the Federal Tort Claims Act (FTCA). See Ingram, 728 F.3d at 1245 ("The VA Immunity Statute applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the VA."). However, "'[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies[,]'" and the "exhaustion requirement is 'jurisdictional and cannot be waived.'" Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (citation omitted). The Court cannot know if Plaintiff has exhausted such remedies, and thus should not convert Plaintiff's complaint into one seeking relief under the FTCA.
The Court further notes that it cannot order Plaintiff's release from confinement in a civil action. See Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) (noting that prisoners seeking to challenge the conditions of confinement "must do so through civil rights lawsuits filed pursuant to" § 1983 or Bivens, respectively, but those inmates seeking "immediate release or a shortened period of confinement" must do so in habeas corpus proceedings) (citation omitted).
The undersigned advises the parties of their right under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2) to file an objection to the report and recommendation with the Clerk of this Court. Any objection must be filed no later than November 13, 2018. Failure to make a timely objection to the report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 23d day of October, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE