United States District Court, E.D. Louisiana
JAMES H. MENDOZA, SR.
UNITED STATES OF AMERICA
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE
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.
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
James H. Mendoza, Sr., pro se,  alleges that the
United States retaliated against him for filing a complaint
about his treatment at a Department of Veterans Affairs
medical center.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.
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.
United States' Morton to Dismiss for Lack of Subject
Matter Jurisdiction A. Legal Standard
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.
Mendoza's Claims for Libel, Slander and Misrepresentation
United States argues that this court lacks subject matter
jurisdiction over Mendoza's claims for libel, slander and
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).
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 ...