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Lucero v. United States

United States District Court, D. Colorado

January 11, 2018



          Kathleen M Tafoya United States Magistrate Judge

         This 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 Court.

         For 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 pending.


         Mr. 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.

         In the 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 ...

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