United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION (DOCKET NOS. 6,
J. KOPPE, UNITED STATES MAGISTRATE JUDGE.
Roger Scott is proceeding in this action pro se and
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket No. 1. On October
10, 2017, the Court granted Plaintiff's application, and
screened Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915.Docket No. 4. The Court dismissed
Plaintiff's complaint with leave to amend. Id.
The Court identified numerous deficiencies in Plaintiff's
complaint, and provided him with an opportunity to cure those
defects. Id. Pending before the Court is
Plaintiff's amended complaint and motion for appointment
of counsel. Docket Nos. 6, 7.
submits a variety of grievances against multiple branches of
the United States government, including the United States
itself, related to his military service during the Vietnam
War. See generally Docket No. 6. Specifically, the
Court construes Plaintiff's allegations to stem from
issues in obtaining medical treatment from the Department of
Veterans Affairs (“VA”) and his disagreement with
the VA's denial of a disability rating for his alleged
post-traumatic stress disorder (“PTSD”).
Id. at 5-8.
Federal Court Jurisdiction
courts are courts of limited jurisdiction and possess only
that power authorized by the Constitution and statute.
See Rasul v. Bush, 542 U.S. 466, 489 (2004).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of the Colville Reservation, 873 F.2d 1221, 1225 (9th
Cir. 1989). As Plaintiff is the party who invokes the
court's jurisdiction, Plaintiff bears the burden of
proving that the case is properly in federal court.
McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th
Cir. 2001) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)).
Subject Matter Jurisdiction
amended complaint alleges violations of
“‘Service-Connected Disability' provisions of
Title 38, USC, Veterans' Benefits...” Docket No. 6
at 8. In essence, Plaintiff disagrees with the
VA's Phoenix Regional Office's decision denying
service-connection for his alleged PTSD. Id.
Plaintiff alleges that the denial, in part, was a result of
the VA's failure to provide him with copies of his
military records. Id. at 38.
sole method of adjudicating disputes over the provision of
veterans benefits is within the framework of the [Veterans
Judicial Review Act (“VJRA”)].”
Richardson v. Dep't of Veterans Affairs, 2006
U.S. Dist. LEXIS 30595, at *7 (W.D. Wash. May 16, 2006)
(citing Hicks v. Small, 842 F.Supp. 407, 410 (D.
Nev. 1993). “[B]enefits-related claims may be heard
only within the VJRA's ‘three-tiered structure for
benefits disputes.' (internal citation omitted) ‘In
order to exhaust administrative remedies within the VJRA, the
plaintiff must file a complaint with the VA, and seek review
of the claim, if denied, with the Board of Veterans Appeals,
and then with the Court of Veterans Appeals.'”
Id. (citing Belton v. Wheat, 1996 U.S.
Dist. LEXIS 1001, at *15, n.6 (N.D. Cal. Jan. 22,
filed a claim with the VA on October 16, 2013, seeking, in
part, to re-open his claim for a determination of
service-connection for his alleged PTSD. Docket No. 6 at 55.
As part of Plaintiff's claim, he included various medical
records of treatments provided by the VA and Tuba City
Regional Health. Id. On May 12, 2015, the VA's
Phoenix Regional Office declined to re-open Plaintiff's
claim regarding his alleged PTSD because Plaintiff did not
submit the required new and material evidence and, based on
the existing evidence submitted, “service connection
for [PTSD] remain[ed] denied based on the absence of a
verifiable military combat stressor.” Id. at
57. Plaintiff fails to allege in his amended complaint that
he has completely exhausted the administrative remedies
avilable through the VJRA system as required.
the Court does not have jurisdiction over Plaintiff's
Veterans benefits-related claim. Richardson, 2006
U.S. Dist. LEXIS 30595 at *7; see cf. Curry v. Heid,
2013 U.S. Dist. LEXIS 169491, at *8-11, 16 (E.D. Cal. Nov.
27, 2013) (dismissing without prejudice the plaintiff's
claims related to his Veterans benefits for failure to
exhaust administrative remedies available under the Federal
Tort Claims Act); Browder v. Nicholson, 2006 U.S.
App. Vet. Claims LEXIS 641, at *3-5 (Vet. App. June 29, 2006)
(requiring the plaintiff to exhaust administrative remedies
related to his claim for Veterans benefits before filing a
petition for a writ of mandamus).
United States' Immunity
Court addressed the prior complaint's deficiency in
naming the United States as a defendant in its previous
order. Docket No. 4 at 3. “The United States, as
sovereign, is immune from suit save as it consents to be sued
..., and the terms of its consent to be sued in any court
define that court's jurisdiction to entertain
suit.” United States v. Sherwood, 312 U.S.
584, 586 (1941). “Its consent to be sued must be
‘unequivocally expressed, ' and the terms of such
consent define the court's subject matter