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Babino v. United States

United States District Court, D. South Dakota, Southern Division

December 21, 2018

LESTER J. BAMBINO, JR., Plaintiff,
v.
UNITED STATES; SIOUX FALLS, SOUTH DAKOTA DEPARTMENT OF VETERANS AFFAIRS; SOUTH DAKOTA DEPARTMENT OF LABOR; JANSSEN & SON; PEOPLEASE - CORP.; ARCH INS; SOUTH DAKOTA MEDICAL BOARD; and SOUTH DAKOTA STATE BAR, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT INTRODUCTION AND BACKGROUND

          Lawrence L. Piersol, United States District Judge.

         On July 9, 2018, plaintiff Lester J. Bambino, Jr. ("Plaintiff), appearing pro se, filed a complaint ("Complaint") against the above-named defendants ("Defendants"). Doc. 1. In his civil coversheet, Plaintiff identifies the nature of his claims as a personal injury involving medical malpractice and the False Claims Act. Doc. 2. Plaintiffs Complaint alleges claims of medical malpractice, legal malpractice, and discrimination against Defendants. Doc. 1. Plaintiff seeks $900, 000 in monetary damages and an apology from the Sioux Falls VA. Pending before the Court is Plaintiffs Motion for Leave to Proceed in Forma Pauperis ("IFP"), Doc. 3, and Motion to Appoint Counsel, Doc. 7.

         The Court is familiar with the facts of this case as the claims in the Complaint involve the same incidents out of which arose Plaintiffs claims in his previous lawsuit filed with this Court on August 28, 2017, Bambino v. Janssen and Son, et. al, 17-cv-4117. In Bambino v. Janssen and Son, et. al, 17-cv-4117, in the Court's preservice review pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court dismissed Plaintiffs claims with prejudice. Doc. 7 and 8. The Court's decision was summarily affirmed by the Eighth Circuit Court of Appeals. Doc. 13.

         In the present case, Plaintiffs civil cover sheet characterizes the origin of this case as being reinstated or reopened and states in the civil cover sheet that his cause of action is one to amend the Judgment filed in Bambino v. Janssen and Son, et. al, 17-cv-4117, on the basis that there are new facts in this case. Doc. 2. However, Plaintiff does not seek to reopen his prior case or amend the judgment in his claim to relief in his Complaint.

         Under Rule 59(e) of the Federal Rules of Civil Procedure, a Motion to Alter or Amend a Judgment must be filed no later than 28 days after the entry of the judgment. In Bambino v. Janssen and Son, et. al, 17-cv-4117, the Court's Order Granting Leave to Proceed in Forma Pauperis and Dismissing Complaint with Prejudice was-filed with the Clerk of Courts on October 12, 2017, and Plaintiff filed his Complaint in the present action on July 9, 2018-well over the 28 days after this Court's entry of judgment in the prior case. Because Plaintiff does not seek to amend this Court's prior judgment in his claim to relief in his Complaint and because the Court is bound to construe Plaintiff spro se Complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court will treat Plaintiff Complaint as a new action.

         FACTS

         The claims alleged by Plaintiff in his Complaint[1], as in the previous lawsuit, appear to stem from a denial of workers' compensation benefits.

         On July 2, 2017, Plaintiff sought treatment at the Sioux Falls VA Hospital for his blood pressure[2]. Compl., IV and Tr. of 4/23/14 Dep't of Labor Hr'g 32:21-33:01. The Physician Assistant, Certified (PA-C) who saw Plaintiff, Michelle Healy, "did not note any significant findings on physical examination" and under review of symptoms, noted in Plaintiffs medical records that "the patient has mild back pain of a year's duration", thus meeting the time duration of "chronic lower back pain." Compl., 3/27/2018 VA Letter.

         Approximately seven (7) months after Plaintiffs July 2, 2017, visit to the Sioux Falls VA Hospital, Plaintiff was in a work-related motor vehicle accident. Compl., Tr. of 4/23/14 Dep't of Labor Hr'g 32:14-17. On April 23, 2014, the Department of Labor held a hearing regarding Plaintiff's claim for workers' compensation benefits. Compl., Tr. of 4/23/14 Dep't of Labor Hr'g. During the hearing, Plaintiff was questioned rather extensively about Ms. Healy's note indicating that Plaintiff had chronic lower back pain. Compl., Tr. of 4/23/14 Dep't of Labor Hr'g, 32:8-34:10. During the hearing, Plaintiff disputed counsel's characterization of Ms. Healy's chronic lower back pain notation as a diagnosis because Plaintiff had not sought any treatment for back pain and because Ms. Healy had not examined him for back pain. Compl., Tr. of 4/23/14 Dep't of Labor Hr'g, 32:21-34:10.

         At some point after the Department of Labor Hearing, it appears that Plaintiffs request for worker's compensation benefits was denied.

         On January 2, 2018, Plaintiff submitted a request to the Sioux Falls VA Health Care System to amend his medical records pursuant to section 552a of the Privacy Act, 5 U.S.C. § 552a(d)(2), and his request was denied. Compl., 1/26/2018 Sioux Falls VA Letter. The Sioux Falls VA's denial of Plaintiffs request to amend his medical records was affirmed by the U.S. Department of Veterans Affairs on appeal[3]. Compl., 3/27/2018 U.S. VA Letter.

         Plaintiff filed an administrative claim under the FTCA against the U.S. Department of Veterans Affairs on November 2, 2017, alleging that false information in his medical records resulted in the denial of his workers' compensation benefits. Compl., 4/5/2018 U.S. VA letter. The VA denied Plaintiffs administrative claim as untimely under 28 U.S.C. § 2401(b) because he did not file his administrative claim within two years after his claim accrued. The VA indicated that based on the VA's investigation, Plaintiff s claim accrued on February 17, 2015-the last date of Plaintiff s alleged harm. Compl., 4/5/2018 U.S. VA letter. The VA's letter noted further that the FTCA is not the proper avenue to dispute information in Plaintiffs medical records or his workers' compensation claim, but informed Plaintiff that he may dispute the agency's decision by filing an action in the appropriate U.S. District Court. Compl., 4/5/2018 U.S. VA letter.

         On July 9, 2018, Plaintiff filed his Complaint in the present case. Liberally construing Plaintiff s pro se Complaint as the Court is bound to do, Plaintiff appears to allege that the Sioux Falls VA committed medical malpractice when Ms. Healy recorded in Plaintiffs medical notes that Plaintiff had chronic lower back pain because Plaintiff was not being seen for lower back pain and because Ms. Healy had not examined Plaintiff for lower back pain. Taking into consideration the Complaint and the attachments to the Complaint, it appears that Plaintiff is alleging that Ms. Healy's negligence caused him to be denied worker's compensation benefits. Plaintiff alleges that the South Dakota Medical Board should not condone such malpractice and should acknowledge the harm Plaintiff has suffered as a result.

         In his Complaint, Plaintiff requests that his workers' compensation case be reopened because the South Dakota Department of Labor Administrative Law Judge knew that all of his "records at the Sioux Falls VA hospital were not brought forward therefore causing discrimination towards [him]".

         Finally, Plaintiff alleges in his Complaint that Janssen and Son, Peoplease Corp, and Arch Ins committed legal malpractice because attorneys for these defendants falsely and knowingly claimed that Plaintiff was diagnosed with a chronic illness. Plaintiff also alleges that the South Dakota Bar should not condone such legal malpractice and should acknowledge the harm Plaintiff has suffered as a result.

         Plaintiff requests an apology from the Sioux Falls VA and damages in the amount of $900, 000. Pending before the Court are Plaintiffs Motion for Leave to Proceed in Forma Pauperis ("IFP"). Doc. 3.

         DISCUSSION

         I. Jurisdiction

         As an initial matter, Plaintiffs asserted basis for federal subject matter jurisdiction should be clarified. "[F]ederal courts are courts of limited jurisdiction" United States v. Afremov, 611 F.3d 970, 975 (8th Cir. 2010). A district court "has a special' obligation to consider whether it, has subject matter jurisdiction in every case." Hart v. United States, 630 F.3d 1085, 1089 (8th Cir. 2011). "This obligation includes the concomitant responsibility 'to consider sua sponte [the court's subject matter] jurisdiction ... where'... [the court] believe[s] that jurisdiction may be lacking.'” Id. (quoting Clark v. Baka, 593 F.3d 712, 714 (8th Cir. 2010) (per curiam)).

         The subject matter jurisdiction of this Court may derive from the citizenship of the parties, see 28 U.S.C. § 1332, a federal question posed by the underlying lawsuit, see 28 U.S.C. § 1331, or special circumstances covered by federal statute.

         Although Plaintiff states various federal statutes as the basis for this Court's jurisdiction[4], Plaintiffs statement of his own causes of action do not arise under any of these statutes. See Vaden v. Discover Bank,556 U.S. 49, 60 (2009) (citing Louisville & Nashville R. Co. v. Mottley,211 U.S. 149, 152 (1908) (stating that Plaintiffs statement of his own cause of action must show that it is based upon [federal law])). The Court does find, however, that Plaintiffs medical malpractice claim against the United States ...


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