Gholar v. Department of Veteran Administration Affair

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSIAL FOR LACK OF SUBJECT MATTER JURISIDICTION WITHOUT PREJUDICE ORDER VACATING SCHEDULING CONFERENCE FOURTEEN-DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         Findings and Recommendations

         Plaintiff John Gholar (“Plaintiff”), a state prisoner, proceeding pro se, commenced this action by filing a complaint and paying the required filing fee on June 2, 2016. Plaintiff’s pleading challenges the Defendant Department of Veteran Affairs (“VA”) management of his veteran’s disability benefits. (Doc. 1). Because this Court lacks the jurisdiction to provide the relief Plaintiff seeks, it is recommended that Plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE.

         Screening Requirement

         Though a filing fee was paid, under 28 U.S.C. § 1915(e)(2)(B), the Court is obligated to dismiss any case at any time if the action “(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” In addition, the Court may dismiss an action sua sponte if it lacks jurisdiction over the matter. Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983) (court must dismiss action whenever it determines that it lacks subject matter jurisdiction).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

         Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012), Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         Plaintiff’s Allegations

         Plaintiff alleges that he is a veteran of the United States military who applied but was initially denied for service connected compensation. Plaintiff later underwent surgery on his left knee in 1998 and the Social Security Administration granted Plaintiff supplemental disability benefits.

         Plaintiff then alleges that in February 2012, the Department of Veteran Affairs reopened his claim for a service connected injury. The VA sent a physician to the Pleasant Valley State Prison, where Plaintiff is incarcerated, to perform a physical examination of his left knee and lower back. The VA physician awarded Plaintiff service connected compensation and the VA began mailing Plaintiff payments to his prison inmate veteran account.

         At some time after being awarded service connected benefits, Plaintiff claims he received notice that he owed over $15, 000.00 in “overpayment.” Plaintiff alleges that he was initially receiving $587.36 a month, but due to his incarceration he was only entitled to receive a reduced benefit of $133.17 a month. Plaintiff claims that the VA was well aware of his incarceration at all times during his request for benefits.

         Plaintiff filed this current lawsuit claiming that he is not obligated to reimburse the VA for the overpayment because the Veteran Act specifies that no recovery shall occur when the overpayment is not the fault of the veteran. Plaintiff further asks this Court to waive his overpayment; grant benefits for the time period before his incarceration; and award retroactive benefits for his knee injury.

         Jurisdiction Over Plaintiff’s Claims

         Plaintiff’s claims arise under the laws administered by the Department of Veterans Affairs. 38 U.S.C. 301, et seq. The Veterans’ Judicial Review Act of 1988 provides the exclusive means for appealing benefit decisions made by the Department of Veterans Affairs. The claimant must first appeal to the Board of Veterans’ Appeals. 38 U.S.C. § 7104(a). An adverse decision by the Board may be appealed to the Court of Appeals for Veterans Claims. 38 U.S.C. § 7252(a) (“The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.”). In the limited circumstances specified by statute, the claimant may seek review by the United States ...