United States District Court, E.D. North Carolina, Western Division
December 15, 2014
RONALD HUGH HUTTON, Plaintiff,
U.S. DEARTMENT OF VETERANS AFFAIRS, Defendant.
ORDER and MEMORANDUM AND RECOMMENDATION
ROBERT T. NUMBERS, II, District Judge.
Ronald Hugh Hutton, a pro se plaintiff, request from the court leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1). This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A)-(B).
Order on Motion to Proceed In Forma Pauperis
Hutton's Affidavit demonstrated that he is unable to prepay the required fees and costs to maintain this action. His motion to proceed in form pauperis is GRANTED.
Memorandum and Recommendation on Frivolity Review
Hutton initiated this action by filing a two-page Complaint challenging the Department of Veterans Affairs' (VA) 1988 finding that he is a disabled veteran. Hutton contends that this classification is no longer valid because he is now able to work. He seeks $20.01 in damages and an injunction that would require the VA to no longer classify him as a disabled veteran. He maintains that this court has jurisdiction over his claims under the Universal Declaration of Human Rights as well as the Seventh and Twenty-Third Amendments.
Hutton's Complaint references an earlier action in this court in which he raised similar issues and sought similar relief. See Hutton v. U.S. Dep't of Veterans' Affairs, No. 5:13-CV-417-FL, 2014 WL 2112673 (E.D. N.C. Apr. 4, 2013) ( Hutton I ), Mem & Recom. adopted, 2014 WL 2112668 (E.D. N.C. May 20, 2014), aff'd, 528 Fed.App'x 244 (4th Cir. Sept. 2, 2104). In Hutton I, the court determined that it lacked subject matter jurisdiction over Hutton's claim because he failed to follow the procedures set out in the Veterans' Judicial Review Act of 1988 (VJRA) for challenging the VA's decision on such issues. Id. 2014 WL 2112673 at *2.
II. Legal Standards
The court's authority to allow a party to proceed without prepayment of costs comes with the responsibility to ensure that this exemption is not taken advantage of by litigants. The law requires that the court dismiss a case brought in forma pauperis if it determines at any time that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
As part of the frivolity review, the court should consider whether it has subject matter jurisdiction over the controversy before it. S ee Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3).
After a thorough review of the Complaint, the court concludes that it does not have subject matter jurisdiction over Hutton's claim. The essence of Hutton's Complaint is a request that the court review the VA's determination that he suffers from a mental disability. Compl. at 1. In Hutton I, Magistrate Judge Gates outlined the impediments to this court considering such a request:
The Veterans' Judicial Review Act of 1988 ("VJRA") provides the exclusive process by which veterans may adjudicate claims relating to veterans' benefits. Specifically, appeals of benefits decisions made by the VA Secretary lie with the Board of Veterans' Appeals ("BVA"). Thereafter, "[t]he BVA decision may be appealed by the claimant to the [Court of Appeals for Veterans Claims], ... and then, under certain circumstances, to the United States Court of Appeals for the Federal Circuit . The decisions of the Federal Circuit are subject to review only by the United States Supreme Court upon certiorari. Accordingly, federal district courts have no jurisdiction to review a VA benefits decision.
Hutton I, 2014 WL 2112673, at *2 (citations omitted). Because this court lacks subject matter jurisdiction over Hutton's claim, the Complaint must be dismissed.
For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED as frivolous.
The Clerk shall send copies of this Memorandum and Recommendation to plaintiff, who shall have until January 2, 2015, or such other time as the court directs, to file written objections. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge.
Attached to this notice is a memorandum and recommendation of a United States Magistrate Judge in this action that has been entered on the records of this court pursuant to 28 U.S.C. §636(b)(1)(c), Fed.R.Civ.P. 72(b)(2)-(3), and Local Civil Rule 72.4(b), EDNC. Rule 72(b) provides as follows:
(2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.
(3) Resolving Objections . The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.
You are hereby notified that unless written objections are timely filed in accordance with this rule, you will have waived the right to further consideration of these issues by the district judge, and an appropriate order based on the memorandum and recommendation will be entered. Furthermore, failure to file timely objections to the findings and recommendation set forth by the magistrate judge may result in a waiver of the right to appeal from a judgment of this court based on such findings and recommendations. See Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).