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Mendoza v. United States

United States District Court, E.D. Louisiana

May 5, 2017

JAMES H. MENDOZA, SR.
v.
UNITED STATES OF AMERICA

         SECTION "S" (2)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE

         IT IS HEREBY ORDERED that the United States of America's Motion to Dismiss flor Lack of Subject Matter Jurisdiction and/or for Failure to State a Claim (Doc. #11) is GRANTED.

         BACKGROUND

         This matter is before the court on the United States of America's motion to dismiss plaintiff's claims against it for lack of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

         Plaintiff, James H. Mendoza, Sr., pro se, [1] alleges that the United States retaliated against him for filing a complaint about his treatment at a Department of Veterans Affairs medical center.[2]Specifically, Mendoza alleges that he filed a complaint with Theresa Cruthids, a Patient Advocate, concerning Dr. Eleanor Daveron and Nurse Brandi Torres claiming that they gave Mendoza “false information concerning a medical report from the Pain Management Clinic in New Orleans, Louisiana.” Within an hour of Mendoza's filing the complaint, Dr. Tanya D. Martin, who was not Mendoza's doctor, stopped a prescription refill that was in progress. Mendoza alleges that Drs. Daveron and Martin falsified his medical records in retaliation for his filing the original complaint, which caused him mental and physical pain. Mendoza “demands that his medical records be cleared of any false information” and seeks $350, 000 for mental and physical distress.

         The United States filed the instant motion to dismiss seeking to dismiss Mendoza's claims arguing that this court lacks subject matter jurisdiction over Mendoza's claims for libel, slander and misrepresentation. The United States also argues that Mendoza has not stated a claim for intentional infliction of emotional distress. Further, the United States argues that Mendoza has not stated a claim under the Privacy Act, 5 U.S.C. § 552a, because he failed to exhaust the administrative remedies prior to filing suit. Mendoza states facts in his medical records that he claims are untrue and that he had a conversation with Cruthirds, who said that a Torres caused many problems.

         ANALYSIS

         I. The United States' Morton to Dismiss for Lack of Subject Matter Jurisdiction A. Legal Standard

         "Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. In a 12(b)(1) motion, the party asserting jurisdiction bears the burden of proof that jurisdiction does in fact exists. Id.

         B. Mendoza's Claims for Libel, Slander and Misrepresentation

         The United States argues that this court lacks subject matter jurisdiction over Mendoza's claims for libel, slander and misrepresentation.

         As a sovereign, the United States “is immune from suit save as it consents to be sued[.]” United States v. Mitchell, 100 U.S. 1349, 1351 (1980). “The FTCA is a limited waiver of sovereign immunity that allows plaintiffs to bring state law tort actions against the federal government.” Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016) (citing Willoughby v. United States ex. rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013)). The FTCA excludes from its limited waiver of sovereign immunity claims against the government for libel, slander and both intentional and negligent misrepresentation. 28 U.S.C. § 2680(h); United States v. Neustadt, 81 S.Ct. 1294, 1298 (1961). It also excludes defamation claims. White v. United Stats, 419 Fed.Appx. 439, 441 (5th Cir. 2011).

         Because the FTCA and applicable jurisprudence clearly states that claims for libel, slander, defamation and intentional and negligent misrepresentation are not included in the FTCA's limited waiver of sovereign immunity, this court lacks subject matter jurisdiction over such claims. The United States' motion to dismiss Mendoza's claims ...


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