United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND
MOTIONS FOR SUMMARY JUDGMENT
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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.
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).
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.
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.
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.
MOTIONS TO DISMISS
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).
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)).
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
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 ...