O'Connor v. USA ( 2021 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION KEVIN PETER O’CONNOR, ) CASE NO. 4:21-cv-1287 ) ) PLAINTIFF, ) JUDGE SARA LIOI ) vs. ) ) MEMORANDUM OPINION AND ) ORDER UNITED STATES, et al., ) ) ) DEFENDANTS. ) I. INTRODUCTION Pro se plaintiff Kevin Peter O’Connor (“O’Connor”) has filed a complaint in this matter in connection with medical care he received over many years at medical facilities operated by the United States Department of Veterans Affairs (“VA”), i.e., the “VA Hospital Wade Park, Cleveland, and the VA Outpatient Clinic Youngstown, Ohio.” (Doc. No. 1 (Complaint) at 4.) He sues the United States and numerous individual defendants, all medical or other employees of the VA facilities. He seeks monetary relief. With his complaint, O’Connor has filed a motion to proceed in forma pauperis. (Doc. No. 2 (IFP Motion).) That motion is granted. For the reasons stated below, however, his complaint is dismissed. II. STANDARD OF REVIEW AND DISCUSSION The Court is mindful that pro se complaints must be held “to less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); see Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 594, 30 L. Ed. 2d 251 (1976) see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (“The allegations of a pro se habeas petition, though vague and conclusory, are entitled to a liberal construction[,]” and “[t]he appropriate liberal construction requires active interpretation in some cases to construe a pro se petition to encompass any allegation stating federal relief”) (internal quotation marks and citations omitted). But principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (“pro se plaintiffs are not automatically entitled to take every case to trial”). District Courts are not required to conjure up questions never squarely presented to them or to construct full-blown claims from sentence fragments. Beaudett, 775 F.2d at 1278. To do so would “require . . . [the courts] to explore exhaustively all potential claims of a pro se plaintiff, . . . [and] would . . . transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Id.; see also Edwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001) (“Although liberal construction requires active interpretation of the filings of a pro se litigant, . . . it . . . does not require a court to conjure allegations on a litigant’s behalf . . . .”) (internal citations omitted). Indeed, federal district courts are required to screen all in forma pauperis complaints and dismiss before service any action the court determines is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). To state a claim, a complaint must set forth “sufficient factual matter, accepted as 2 true, to state a claim to relief that is plausible on its face.” Id. at 471 (applying the dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), to dismissals for failure to state a claim under § 1915(e)(2)(B)). The “allegations must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. They also must be sufficient to give defendants “fair notice of what [the plaintiff's] claims are and the grounds upon which they rest.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Even construing O’Connor's complaint and supplemental document liberally, he has not met basic pleading requirements or stated a claim upon which relief may be granted. The complaint does not set forth coherent factual allegations, recognizable legal grounds, or a request for relief sufficient to state any plausible federal claim against the named defendants. The complaint, therefore, must be dismissed pursuant to § 1915(e)(2)(B).1 See Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (a court is not required to accept summary allegations or unwarranted conclusions in determining whether a complaint states a claim for relief). 1 To the extent O’Connor has attempted to assert a claim against the United States for medical malpractice under the Federal Tort Claims Act (“FTCA”) (which the Court finds for the reasons previously stated he has failed to do), such a claim would fail for the additional reason that O’Connor has not alleged or otherwise demonstrated that he has exhausted his administrative remedies. See Bumgardner v. U.S., 469 F. App’x 414, 417 (6th Cir. 2012) (in order to file a medical malpractice claim for damages under the FTCA against the VA, plaintiff veteran was required to first exhaust administrative remedies); see, e.g., Williams v. U.S., No. 1:11-cv-671, 2011 WL 3566811, at *2 (N.D. Ohio Aug. 15, 2011) (veteran’s pro se FTCA claim dismissed without prejudice for failure to file an administrative claim with the VA prior to bringing suit in federal court). 3 III. CONCLUSION Accordingly, O’Connor’s motion to proceed in forma pauperis (Doc. No. 2) is granted and this action is dismissed pursuant to 28 U.S.C. § 1915(c). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. Dated: November 3, 2021 i a. HONORABLE S LIOI UNITED STATES DISTRICT JUDGE