United States District Court, D. Colorado
ANTHONY J. LUCERO, Plaintiff,
UNITED STATES, Defendant.
Kathleen M Tafoya United States Magistrate Judge
action is before the Court on “Defendant's Motion
to Dismiss Claim 3 of Plaintif's (sic) Second Amended
Complaint (Doc. 23)” (Doc. No. 24). The motion seeks
dismissal of the third claim of pro se Plaintiff
Anthony J. Lucero's second amended complaint (Doc. No.
23, the “SAC”). The parties consented to
magistrate jurisdiction for all purposes under 28 U.S.C.
§ 636(c), and the case was referred to Magistrate Judge
Craig B. Shaffer. Doc. No. 17. Shortly after the briefing on
Defendant's motion was complete, Judge Shaffer became
unavailable. The case was reassigned to the undersigned on
November 8, 2017. Doc. No. 30. The Court has reviewed the
briefs and finds that oral argument would not assist the
reasons that follow, the Court GRANTS the motion to dismiss
claim 3 without prejudice because Plaintiff did not exhaust
his administrative remedy for that claim, and the Court
therefore lacks subject matter jurisdiction over it.
Plaintiff's first and second claims for relief remain
OF THE CASE
Lucero brought this action by filing an original and
corrected complaint on March 28, 2017. Doc. Nos. 1, 2.
Plaintiff also filed an Amendment to Original Corrected
Complaint on May 19, 2017. Doc. No. 11. Judge Shaffer held a
status conference with the parties on July 11, 2017, in which
he granted leave for Plaintiff to file a motion to amend his
complaint. Doc. No. 15 (minutes). Mr. Lucero timely filed the
motion to amend with a proposed second amended complaint.
Doc. No. 18. The Court granted the motion to amend, and the
SAC was docketed on August 16, 2017. Doc. No. 23.
SAC, Mr. Lucero brings three claims for relief. Defendant has
answered the first and second claims for relief, and those
claims are not at issue here. The Court accordingly does not
summarize all of Plaintiff's allegations, but only those
that relate to the third claim. Plaintiff alleges that
Charles Stephen Bonney, my former VA mental health therapist
in Pueblo, Colorado, did greatly harm, injure, and damage my
life not only on August 8, 2012, when he filed false written
and oral reports but also from four years earlier - when he
began writing and filing patently fraudulent medical
documents, which past false reporting and damages extend to
this very day.
SAC at p. 2. Regarding those facts, he
filed a Federal Form 95, Claim for damage, injury, or
death on 8/07/2014, with supporting documents and
elaboration for items #8 and #10 of that form which were to
be scrutinized by the VA attorneys for the U.S. Dept. of
Veterans Affair. After some length of time I called the first
VA attorney and she responded to me that she was overwhelmed
with her caseloads, then later denied my claim without
elaboration on January 30, 2015. I next filed an Affidavit
along with a Request for Reconsideration of
Administrative Tort Claim motion. I timely filed my
administrative tort claim and an appeal of its denial, but
was issued the final agency denial without any rationale or
references on 9/27/2016. That denial was issued without
corroboration despite substantial evidence I had submitted
regarding my actions and inactions, and those “willful
and wanton” actions of VA therapist Bonney's false
previous filings over the years. By those VA attorneys not
communicating with me, nor interviewing me, nor commenting on
the merits of my filing, they failed to convince me that
they'd made any effort at all and, perhaps because of
case overload, denied me my due process rights.
SAC at pp. 4-5. In Mr. Lucero's third claim for relief,
he further alleges regarding the VA attorneys:
The attorneys for the Veterans Affairs apparently did not
follow through with the evidence and witness that I
provided. They took many, many months to respond and
didn't communicate with me except to write that my
actions and writings had been denied.
After I called, the second attorney told me that there were
11 cases ahead of me and then months later, she called me and
said that there were now 22 cases ahead of me! How can that
be? She said that she forgot that she had talked to me
previously. She offered no excuse for not handling my case.
The government attorneys provided no evidence of their
reasons, actions or inactions and did each violate my rights
to due process and delay my claim relief.
Id. at p. 10 ¶¶ 16-17 (emphasis original).
Plaintiff alleges the court has jurisdiction pursuant to
28 U.S. Code § 2675 (Disposition by federal agency as
prerequisite); 28 CFR § 14.9 (Final denial of claim); 28
U.S.C. § 2401(b) (time bar for filing this original
action was met), and 28 U.S.C. 1346 United States as
defendant. Copies of denials of plaintiff's V.A. claims
of January ...