United States District Court, E.D. California
ANTHONY L. MANNING, Plaintiff,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is proceeding in this matter pro se, and pre-trial
proceedings are accordingly referred to the Magistrate Judge
pursuant to Local Rule 302(c)(21). Defendant’s motion
to dismiss, ECF No. 16, was filed August 7, 2019 and has been
fully briefed, ECF Nos. 18, 25. The matter came on for
hearing before the undersigned on September 18, 2019.
Plaintiff appeared on his own behalf, and Asst. U.S. Attorney
Philip A. Scarborough appeared for the government. For the
reasons explained below, the court recommends that the motion
to dismiss be GRANTED in part and DENIED in part.
Allegations of the Complaint
Anthony L. Manning is a former active duty member of the
United States Navy and is now a military veteran. ECF No. 6
at 1 (Second Amended Complaint). Plaintiff states that the
United States Department of Veterans Affairs
(“USVA”) received his Federal Tort Claims Act
(“FTCA”) notice on August 27, 2018 and responded
with a denial on September 25, 2018. Id. Plaintiff
filed suit on March 20, 2019. Id. at 2; ECF No. 1.
Plaintiff states that he is suing the USVA for “two
counts of medical negligence.” ECF No. 6 at 2.
alleges he was diagnosed with Post Traumatic Stress Disorder
(“PTSD”) and received treatment from Dr. Amy
Fuglei, a medical doctor employed by the USVA. Id.
at 2. Dr. Fuglei prescribed plaintiff an anxiety medication,
Propranolol HCL, although an evaluation from a private
specialist in PTSD, Dr. John Issacs, stated that plaintiff
had depression. Id. The medical evaluation of
plaintiff’s depression was submitted to the USVA, but
the USVA failed to properly treat it and the illness
worsened. Id. Because of this, plaintiff had
difficulty sustaining gainful employment. Id.
Plaintiff asserts that he should have been treated for PTSD
with depression and anxiety, and because he was only treated
for anxiety, he received a lower compensation rating. This
incident occurred on or around April 9, 2017. Id.
second incident of medical negligence took place on December
7, 2017. Id. Plaintiff was diagnosed with sleep
apnea caused by burn pit exposure, which occurs when military
personnel deployed in Iraq or Afghanistan breathe in toxins
from burning trash, waste, chemicals and other materials.
Id. at 3. Plaintiff requested to have his lungs and
other organs examined by a USVA pulmonary specialist, but
none of the specialists have responded to plaintiff’s
request. Id. On November 22, 2018, plaintiff was
hospitalized at Service De Sante Militarire Hospital in
D’ Antsiranana, Madagascar. Id. Plaintiff had
increased Aspartate Aminotransferase (“AST”)
which is a cardiovascular disease associated with poor
respiratory health. Id. Plaintiff alleges that
because he was not given proper treatment for sleep apnea,
death is more likely to occur sooner than if treatment from a
pulmonary specialist were provided. Id. Plaintiff
filed a claim for damage, injury, or death to the USVA
stating as the basis for his claim:
The U.S. Department of Veterans Affairs did not allow me to
be seen by a pulmonary specialist, even though it was
documented by the VA and DoD that I have exposure to burn
pits in Afghanistan that causes respiratory issues. The VA
never responded to my doctor’s referral, though I tried
to contact them several times. Now I have cardiovascular
disease, which could have been prevented if I was diagnosed
by a pulmonary specialist earlier.
ECF No. 23 at 15. This claim was submitted August 22, 2018.
asserts one count of medical negligence for the treatment of
his PTSD, seeking $1, 037, 193.64 in damages resulting from
lost wages from jobs plaintiff was forced to voluntarily quit
due to his mental illness, as well as the future treatment of
asserts a second count of medical negligence for the denial
of medical treatment for his sleep apnea, seeking $3, 951,
297.90 in damages.
MOTION TO DISMISS
seeks to dismiss the claims against it with prejudice for
lack of subject matter jurisdiction pursuant to the