ORDER
Came on for consideration the following:
(1) Mоtion to Dismiss, and Brief in Support, of the United States, filed March 11, 2013;
(2) Motion to Dismiss, and Brief in Support, of the Department of Veterans Affairs, filed March 11, 2013; and
(3) Plaintiffs Amended Response, filed March 29, 2013.
Plaintiff, Victor Prentice (“Prentice”), proceeding pro se, filed a lengthy complaint listing the United States as the defendant and a series of agencies, departments, individuals, and entities as “co-defendants.” After Prentice sought in forma pauperis status, the Court screened the original complaint and issued an order requiring Prentice to file an amended pleading. The Court explained that “[wjhile Plaintiff is ostensibly attempting to state a claim for medical malpractice and a deprivation of his civil rights, the Court is at a loss as to which claims Plaintiff contends implicate which defеndants and which of the many—sometimes incoherent—facts that Plaintiff alleges support each claim with regard to each Defendant.” Ct.’s August 24, 2012 Order. The Court ordered Prentice to identify, among other things, the specific аcts or omissions of each Defendant implicated in each cause of action and to explain how the conduct at issue allegedly would be actionable.
Thereafter, Prentice filed an amended complaint. Although the amended complaint is shorter than the original one, it still failed to clarify the specifics of Prentice’s alleged claims in any meaningful way. The Court then sent Prentice a questionnaire seeking to elicit specific explanations from him about his claims as to each entity or individual referenced as a potential defendant. Prentice was directed to state concisely the cause of action alleged and the specific facts relevant to each Defendant, including dates and locations.
On receiving Prentice’s response to the questionnaire, the Court issued an Order noting that Prentiсe “still has not clearly described the facts in support of his claim.” Ct.’s November 15, 2012 Order. The Court allowed Prentice to proceed in forma pauperis and ordered service on the United States and the Department of Veterаns Affairs (“VA”), but also specifically “reserve[d] the right to dismiss Plaintiffs claims at any time....” Id.
As best the Court can discern, Prentice’s allegations appear to fall into two broad
As an initial matter, the Court is without jurisdiction to entertain Prentice’s claims against the VA. With regard to his claims under the FTCA, these claims may be brought against the United States only, not its agencies or employees. 28 U.S.C. § 2671, 2679(a), b(l) (providing that the FTCA does not authorize suits against federal agencies and that the FTCA is the exclusive remedy with respect to injuries caused by federal employees acting within the scope of their employment); Galvin v. Occupational Safety & Health Admin.,
Additionally, to .the extent Prentice is seeking to challenge any denial by the VA of a request for fee-basis care, jurisdiction is likewise absent. By statute, a veteran may request that the VA arrange for fee-basis care from non-VA facilities if VA facilities “are not capable of furnishing еconomical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required.” 38 U.S.C. § 1703(a). Prentice states that the VA has denied his requests for fee-basis care and asks the Court to order the VA to approve the requests. Under 38 U.S.C. § 511, the Secretary of Veterans Affairs has responsibility for decisions to grant or deny benefits, and district courts are not a part of that process. See Zuspann v. Brown,
Next, invoking the FTCA, Prentice pleads claims for medical mаlpractice against the United States. Under the doctrine of sovereign immunity, the United States cannot be sued without its consent. United States v. Testan,
The United States is entitled to dismissal of Prentice’s medical claims because he has not complied with applicable Texas law requiring the submission of a threshold expert report. Under Texas Civil Practice & Remedies Code § 74.351(a), any plaintiff bringing a “health care liability claim”
The Court notes that the law is unsettled in this circuit as to whether Texas Civil Practice & Remedies Code § 74.351(a) applies in federal court. The Fifth Circuit, in Chapman v. United States, held, albeit in dicta, that dismissal of a mеdical malpractice claim was proper when the plaintiff failed to comply with the statute.
The Court is of the opinion that Texas Civil Practice & Remedies Code § 74.351(a) does not conflict with federal law and the application of the provision would significantly affect the outcome of the instant case. Therefore, the provision applies here. Prentice has not filed a threshold expert report, and more than 120 days have passed since he filed this case.
Finally, Prentice asserts that he is suing for violations of “civil rights and entitlements as a U.S. Citizen and Disabled Veteran,” citing 42 U.S.C. §§ 1983 and 1985(c), but neither statute provides a viable basis for any civil rights claim. Section 1983 applies to persons acting under color of state law and does not permit claims against federal agencies or federal officials acting under color of fеderal law. See Resident Council of Allen Parkway Village v. U.S. Dep’t of Hous. & Urban Dev.,
Even liberally construing the pro se pleadings as alleging a claim under Bivens v. Six Unknown Named Agents,
Prentice also attempts to allege clаims pertaining to his medical treatment against apparent non-governmental employees. With the dismissal of his federal claims, the Court does not have independent subject-matter jurisdiction over this action аnd declines to exercise supplemental jurisdiction over Prentice’s state-law claims. Enochs v. Lampasas Cnty.,
Normally the Court affords a plaintiff an opportunity to amend his complaint after dеtermining that the pleadings fail to state a claim. However, Prentice has already amended his complaint after the Court noted its deficiencies, and he responded to the Court’s questionnaire, the respоnses to which are incorporated into the pleadings. Therefore, Prentice has had ample opportunity to plead his best case and has still fallen short of stating any viable claim. As such, his claims should be dismissed without Prentice being given the opportunity to re-plead.
For the reasons stated herein:
(1) Defendant Department of Veterans Affairs’ Motion to Dismiss is GRANTED;
(2) Defendant United States of America’s Motion to Dismiss is GRANTED;
(3) Prentice’s claims against the Department of Veterans Affairs pertaining to his medical care and the denial of his request for fee-basis care are DISMISSED without prejudice;
(4) Prentice’s claims against Defendants Dr. Ronald Ford, Baptist Saint Anthony Hospital, and Dr. Richard Archer, Jr. are DISMISSED without prejudice;
(5) all remaining claims are DISMISSED with prejudice; and
(6) all motions not granted are DENIED.
SO ORDERED.
Notes
. A "health care liability claim” includes any claim against a health care provider for negli
. Prentice filed a motion for waiver, which the Court liberally construes as an effort to be excused from filing an expert report due to his limited funds. However, Prentice does not сite, and the Court is unaware, of any authority excusing an indigent plaintiff from making the requisite filing. See Tex. Civ. Prac. & Rem.Code § 74.351(b) ("If ... an expert report has not been served within [120 days after the date the original petition was filed], the court ... shall ... dismiss the clаim ... with prejudice to the refiling of the claim.’’); see also Soberon v. Robinson, No. 09-06-067,