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McKinney v. United States

United States District Court, D. Colorado

November 23, 2016

SUZANNE ELAINE MCKINNEY, Plaintiff,
v.
UNITED STATES, VERIZON, INC., a U.S. Corporation, MEMORIAL HOSPITAL, a subsidiary of UCHealth, a U.S. Corporation, Defendants.

          ORDER

          R. Brooke Jackson, Judge

         This order addresses (1) defendants' motions to dismiss [ECF Nos. 8, 10, 11]; (2) plaintiff's combined response to defendant United States' motion to dismiss and motion for summary judgment [ECF No. 12]; (3) plaintiff's combined response to Memorial Hospital's motion to dismiss and motion for review of certification requirement and leave to amend [ECF No. 13]; (4) defendant United States' motion to strike plaintiff's motion for summary judgment [ECF No. 16]; (5) defendant Memorial Hospital's motion to strike plaintiff's motion for review of certification requirement and leave to amend [ECF No. 18]; (6) plaintiff's motion for summary judgment against defendant United States [ECF No. 22]; (7) plaintiff's motion for sanctions against the attorney for defendant United States [ECF No. 27]; (8) defendant United States' motion to stay proceedings [ECF No. 30]; (9) plaintiff's motion to restrict public access to or redact portions of court documents and exhibits [ECF No. 32]; (10) plaintiff's motion for correction [ECF No. 37]; and (11) defendant United States' motion for extension of time [ECF No. 40]. The Court apologizes for its delay in addressing these motions. The motions to dismiss are GRANTED, and all remaining motions are MOOT.

         BACKGROUND

         A. Factual Allegations. [1]

         Ms. McKinney is a former employee of the Veterans Benefits Administration (VBA) in Washington, D.C. She alleges that she discovered evidence of fraud at the VBA and reported it to her supervisors, prompting retaliation. As a result, Ms. McKinney was forced to resign in October 2013. But this case is not about the VBA's alleged retaliation against Ms. McKinney. Instead, this case picks up after she moved back to Colorado and began searching for a new job.

         According to Ms. McKinney, VBA has orchestrated a nationwide conspiracy to harass her and prevent her from securing a new position. She claims an unknown assailant with connections to VBA shot her in the head, leaving a palpable entry and exit wound in her skull.

         ECF No. 1 at ¶¶ 31-32. She also contends that VBA is committing ongoing tortious interference with her employment, including: “tracking through G.P.S., interference with versioning of documents through administrative accounts, removing word-processing corrections, and interception of Plaintiff's emails and phone calls/texts.” Id. at ¶ 24. Her allegations continue:

V.B.A. employees have asked various social networks for their cooperation in tracking and harassing Plaintiff . . . . In order to gain cooperation from these various social networks, V.B.A. employees have generated slander and libel in order to mislead these social networks into thinking they are furthering the individual social network's particular cause. (As an example, anti-abortion networks have been told variously that either: 1) Plaintiff has had an abortion; or 2) Plaintiff is an abortion doctor; Plaintiff is an illegal alien who lacks “green card” status and does not speak English.) V.B.A. employees have monitored Plaintiff's phone calls and texts and forwarded the content to social network members, asking that they use specific nouns/names from those texts while engaging in loud conversation near Plaintiff.

Id. at ¶ 45-47. Last, she claims VBA employees have been “pretending to be family members, and . . . accusing her of many unsolved or unclosed crimes. Thereby, V.B.A. employees gained the unknowing support of law enforcement in their efforts to defame Plaintiff and keep her from getting support from law enforcement and other agencies.” Id. at ¶ 59.

         Ms. McKinney believes Memorial Hospital and Verizon are in on this supposed conspiracy. When she went to Memorial Hospital for an x-ray of her “readily apparent” bullet wound, the nurse allegedly “intentionally read[] fraudulent x-ray results to Plaintiff, ” preventing her from receiving necessary treatment. Id. at ¶¶ 32, 39. Meanwhile, Verizon has allegedly failed to report to law enforcement VBA's interference with her phone calls and text messages, and instead raised her phone bill. Id. at ¶¶ 51-52.

         B. Procedural History.

         On March 8, 2016 Ms. McKinney filed a substantially similar suit in forma pauperis in this Court. See Complaint, McKinney v. U.S. Dep't of Veterans' Affairs et al., No. 16-cv-00569-LTB (D. Colo. April 22, 2016), ECF No. 1. Judge Babcock dismissed the complaint with prejudice because he concluded that Ms. McKinney's claims “rest on ‘fantastic or delusional scenarios' whose factual contentions ‘rise to the level of the irrational or the wholly incredible.'” Order of Dismissal at 6, McKinney, No. 16-cv-00569-LTB, ECF No. 12 (quoting Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 33 (1992)). In the alternative, he dismissed the case without prejudice because Ms. McKinney failed to comply with a court order that she submit her complaint on the current court-approved form as required by local court rules. Id. at 7.

         Ms. McKinney then filed this case on May 6, 2016, alleging tortious interference with employment, personal injury, defamation, intentional infliction of emotional distress, and civil conspiracy, and requesting punitive damages. ECF No. 1. On August 15, 2016 the United States submitted a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 8. Memorial Hospital filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) on August 23, 2016. ECF No. 10. Verizon likewise filed a motion to dismiss on August 23, 2016 under the doctrine of claim preclusion based on Judge Babcock's dismissal of Ms. McKinney's first case. ECF No. 11.

         A flurry of motions has followed. On August 30, 2016 Ms. McKinney submitted a combined response to the United States' motion to dismiss and a motion for summary judgment for her slander and libel claims. ECF No. 12. She filed her responses to Memorial Hospital and Verizon's motions to dismiss on September 9, 2016. ECF Nos. 13, 14.

         On September 16, 2016 the United States submitted a reply brief and filed a motion to strike Ms. McKinney's motion for summary judgment because she included it in her response brief in violation of this Court's rules. ECF Nos. 15, 16. On September 23, 2016 Memorial Hospital submitted a motion to strike Ms. McKinney's request for review of the certification requirement implicated by her claims and leave to amend contained in her response to Memorial Hospital's motion to dismiss, alleging that this combined filing also violates this Court's practice rules. ECF No. 18.

         On September 26, 2016 Ms. McKinney submitted a response to the United States' motion to strike admitting error and advancing other arguments, and filed a separate motion for summary judgment on her slander and libel claims. ECF Nos. 21, 22. She filed a motion for sanctions against counsel for the United States on October 18, 2016. ECF No. 27. She also filed a motion to restrict public access to or, in the alternative, redact portions of court documents and exhibits on October 21, 2016. ECF No. 32.

         The United States filed a motion for an extension of time to respond to plaintiff's motion for summary judgment on October 20, 2016, and the Court granted this motion the next day. ECF Nos. 28, 29. Around the time that the Court issued its order, however, Ms. McKinney filed a motion for default judgment against the United States for failure to timely respond to her motion for summary judgment. ECF No. 31. The Clerk of Court properly denied this request because the motion for an extension of time was granted. ECF No. 33. Notwithstanding the Court's ruling, Ms. McKinney submitted a response brief on October 24, 2016 urging denial of the United States' motion. ECF No. 34. She later submitted a motion for correction requesting that the Court enter a date certain in its order granting the United States' enlargement of time. ECF No. 37.

         The United States submitted a motion to stay proceedings and vacate the scheduling conference on October 21, 2016. ECF No. 30. On November 10, 2016 the United States filed a motion for extension of time to respond to plaintiff's motion for sanctions and to respond to plaintiff's motion for correction. ECF No. 40. On November 18, 2016 the parties attended a scheduling conference, mooting the United States' request to vacate the setting.

         STANDARD ...


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