United States District Court, D. South Dakota, Southern Division
LESTER J. BAMBINO, JR., Plaintiff,
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.
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.
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.
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.
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.
claims alleged by Plaintiff in his Complaint, as in the
previous lawsuit, appear to stem from a denial of
workers' compensation benefits.
2, 2017, Plaintiff sought treatment at the Sioux Falls VA
Hospital for his blood pressure. 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.
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.
point after the Department of Labor Hearing, it appears that
Plaintiffs request for worker's compensation benefits was
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. Compl., 3/27/2018 U.S. VA Letter.
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.
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.
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
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.
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.
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)).
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.
Plaintiff states various federal statutes as the basis for
this Court's jurisdiction, 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 ...