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Manning v. United States Department of Veterans Affairs

United States District Court, E.D. California

September 19, 2019

ANTHONY L. MANNING, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         A. Allegations of the Complaint

         Plaintiff 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.

         Plaintiff 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.

         The 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. Id.

         B. The Claims

         Plaintiff 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 his PTSD.

         Plaintiff asserts a second count of medical negligence for the denial of medical treatment for his sleep apnea, seeking $3, 951, 297.90 in damages.

         II. MOTION TO DISMISS

         Defendant seeks to dismiss the claims against it with prejudice for lack of subject matter jurisdiction pursuant to the ...


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