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Ginsberg v. United States Department of Veterans Affairs

United States District Court, D. Massachusetts

July 31, 2018

JOHN DEREK GINSBERG, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS and UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Plaintiff John Derek Ginsberg filed the instant action against Defendant United States Department of Veterans Affairs (the “VA”) on November 2, 2017, asserting claims arising out of his medical treatment by the VA that allegedly resulted in adverse health effects and financial losses. [ECF No. 1-1]. On May 31, 2018, Plaintiff added the United States of America as a defendant to the case. [ECF No. 82]. Currently pending before the Court are Defendants' motions to dismiss [ECF Nos. 63, 89] and Plaintiff's motions for summary judgment [ECF Nos. 79, 93]. For the reasons stated below, Defendants' motions to dismiss are GRANTED, and Plaintiff's motions for summary judgment are DENIED.

         I. BACKGROUND

         The following facts are drawn from the complaint [ECF No. 1-1] (the “Complaint”), the well-pleaded allegations of which are taken as true for purposes of evaluating Defendants' motions to dismiss. See Ruivo v. Wells Fargo Bank, 766 F.3d 87, 90 (1st Cir. 2014).

         Plaintiff is a disabled veteran who received medical care from the VA between July 30, 2003 and December 31, 2011. Compl. ¶ 3. During this period, Plaintiff was prescribed the medication Abilify (also known as Aripiprazole) by VA physicians to mitigate “schizophrenia spectrum severe and persistent mental illness.” Id. ¶ 3. Plaintiff alleges that as a result of taking Abilify, he suffered from “aggravation of impulse control, ” “increase[d] . . . libido, ” and “impairment of financial judgment.” Id. ¶¶ 4-5. In August 2006, during the period he was taking Abilify, Plaintiff was placed in the VA Fiduciary Program upon the recommendation of his VA psychiatrist. Id. ¶ 8. Participants in the program are deemed financially incompetent and surrender the management of their estate and finances to a VA Fiduciary. Id. In approximately February 2010, Plaintiff's then-psychiatrist and his Fiduciary deemed him no longer incompetent and recommended his removal from the program, which occurred in June 2010. Id. ¶ 15. Plaintiff alleges that while in the fiduciary program, he suffered financial losses “due to the actions of the VA Fiduciary as well as to Plaintiff's own actions because of the effects of Abilify.” Id. ¶ 16.

         Around December 31, 2011, Plaintiff “directed the Defendant to permanently discontinue the prescription and administration of Abilify to him.” Id. ¶ 3. On May 31, 2012, Plaintiff filed an action in the United States District Court, District of Minnesota, Ginsberg v. U.S. Dep't of Veterans Affairs, No. 12-cv-1300-RHK/JJK (D. Minn. May 31, 2012) (“2012 Complaint”), alleging his use of Abilify “produced insomnia and other issues, including aggravation of the psychosis and depression” as well as “emotional rage” and “anger.” 2012 Compl. ¶¶ 101, 170. He also alleged in the 2012 action that during the period he was taking Abilify he was declared financially incompetent and placed in the fiduciary program. Id. ¶¶ 109-11. That action was dismissed on September 7, 2012.

         On May 5, 2016, the U.S. Food and Drug Administration (the “FDA”) issued a drug safety warning (“Drug Warning”) regarding Abilify stating that it “was known to cause impairment of impulse control and financial judgment.” Compl. ¶ 1. On April 25, 2017, Plaintiff filed an administrative claim with the VA. [ECF No. 90-3]. On November 2, 2017, Plaintiff filed the instant action, seeking $2, 500, 000.00 in damages.

         II. MOTIONS TO DISMISS

         A. Legal Standard

         In evaluating a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), “[t]he existence of subject-matter jurisdiction ‘is never presumed'” because federal courts are courts of limited jurisdiction. Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting Viqueria v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). The Court may look beyond the pleadings in order to determine if it has jurisdiction over the matter. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). In making this determination, the Court may “consider whatever evidence has been submitted, such as the depositions and exhibits submitted.” Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).

         The Court will construe Plaintiff's allegations liberally because he is proceeding pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A pro se litigant, however, must still comply with procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (“The policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled.”). Dismissal of a pro se complaint is appropriate when the complaint fails to state an actionable claim. See Muller v. Bedford VA Admin. Hosp., No. 11-cv-10510, 2013 WL 702766, at *3 (D. Mass. Feb. 25, 2013) (citing Overton v. Torruella, 183 F.Supp.2d 295, 303 (D. Mass. 2001)).

         B. Discussion

         Plaintiff brings a tort claim under the Federal Tort Claims Act (“FTCA”) premised on allegations that the VA is liable for damages resulting from the allegedly deleterious side effects he experienced from Abilify, which VA doctors prescribed for him to treat his schizophrenic condition.[1]

         Before a plaintiff can bring suit in federal court under the FTCA, he must first submit the claim to the appropriate federal agency and exhaust all available administrative remedies. McNeil v. United States,508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”). The agency claim must be finally denied before a plaintiff may bring an action in federal court. 28 U.S.C. § 2675(a). “The failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final denial . . . .” Id. Here, Plaintiff followed the necessary procedure for exhausting administrative remedies prior to filing his action in federal court. Neither party has asserted ...


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