United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSIAL
FOR LACK OF SUBJECT MATTER JURISIDICTION WITHOUT PREJUDICE
ORDER VACATING SCHEDULING CONFERENCE FOURTEEN-DAY
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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.
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.
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
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.
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.
Over Plaintiff’s Claims
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 ...