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Jelks v. McDonald

United States District Court, N.D. Alabama, Southern Division

September 13, 2017

DANNY O'NEAL JELKS, Plaintiff,
v.
ROBERT MCDONALD, et al., Defendants.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         On October 5, 2016, Plaintiff Danny O'Neal Jelks (“Jelks” or “Plaintiff”) initiated this action, alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 by Defendants Robert McDonald (then Secretary of Veterans Affairs) and Phyllis Curtis, Michal Kilcoyne, Dexter Carbonell, Allyn Mamalakis, Melissa Kindley, Edna McDonald, Cory Hawthorne, and Michael Duesenberg, all of whom are employees of the Department of Veterans Affairs (“VA”). (Doc. 1). Defendants responded with a motion to dismiss or, in the alternative, for summary judgment, alleging this Court lacks subject matter jurisdiction to consider Jelks' claims and, alternatively, they are entitled to judgment as a matter of law. (Doc. 8). Jelks filed a response in opposition, (doc. 11), and Defendants filed a reply brief, (doc. 14). After Defendants' reply, Jelks filed a document entitled “Plaintiffs Objection to the Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, ” (doc. 15), which the Court construes as a sur-reply. Jelks has also moved for a hearing on Defendants' motion. (Doc. 16). For the reasons stated more fully below, the motion for a hearing is DENIED and the motion to dismiss is GRANTED.[2]

         I. Standard of Review

         Federal courts are courts of limited jurisdiction, with the power to hear only cases authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under Federal Rule of Civil Procedure 12(b)(1), a party may move the court to dismiss a case if the court lacks jurisdiction over the subject matter of the case. Even when a party does not assert a jurisdictional challenge, “a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.2005). Simply put, a federal court is powerless to act beyond its constitutional or statutory grant of subject-matter jurisdiction. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.2001). Regardless of how the issue came before the court, a plaintiff, as the party invoking jurisdiction, bears the burden of establishing the court's subject-matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994).

         A challenge to a court's subject-matter jurisdiction may come by way of a facial attack or a factual attack:

Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.

Garcia v. Copenhaver, Bell & Assocs., M.D.s, 104 F.3d 1256, 1261 (11th Cir.1997) (citations omitted). Because Defendants rely on documents which are outside of the pleadings, (see doc. 8 at 14-19), their challenge to the court's subject-matter jurisdiction is, at least in part, a factual attack. Under such an attack, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (per curiam) (citation omitted). Indeed, “[i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.2002); Motta v. United States, 717 F.3d 840, 844 (11th Cir.2013).

         However, a court may only find that it lacks subject-matter jurisdiction “if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir.2003) (citations omitted). When a jurisdictional challenge implicates the merits of the plaintiff's claim, the court must “find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.” Id. (citations omitted). This ensures “a greater level of protection for the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place great restrictions on the district court's discretion.” Id. (citations omitted) (alterations in original). “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         II. Background[3]

         Jelks is a veteran of the United States armed forces. At some point, Jelks qualified for the Veterans Retraining Assistance Program (“VRAP”) and intended to attend Lawson State Community College in Birmingham, Alabama. (Doc. 1 at 5). However, Jelks experienced problems with Lawson State's admissions process and chose instead to attend Birmingham Easonian Baptist Bible College (“BEBBC”), also in Birmingham. (Id.). Jelks was accepted to BEBBC on January 23, 2013. (Id.). Jelks was enrolled on the understanding he would resubmit his VRAP paperwork, but VA Education Officer Phyllis Curtis denied his request to use his benefits at BEBBC. (Id.). Jelks appealed to the Board of Veterans Appeals, but Board of Veterans Appeals Judge Michael E. Kilcoyne upheld the denial of benefits. (Id.). Jelks alleges other veterans were permitted to attend BEBBC using their VRAP benefits over the last twenty-three years and that denying him the ability to do so is discrimination. (Id.).

         Additionally, Jelks claims the VA Regional Office in Nashville, Tennessee, has retaliated against him by denying every disability claim he has filed with it since he filed a wrongful termination suit against the VA in 2007. (Id.). Jelks alleges these claims-for earlier pay dates for service-connected injuries, depression, PTSC, “poly substance abuse, ” and penis surgery-have all been denied without a hearing or considering the evidence, in violation of VA rules, regulations, and policies. (Id. at 5-6). Jelks claims his medical records were altered by a clerk at a VA clinic in Murfreesboro, Tennessee, which affected his disability compensation, and that some of his military records have been destroyed or hidden by the Nashville, Tennessee, and Montgomery, Alabama VA offices. (Id. at 6). Jelks alleges he has been denied compensation for neck surgery and spinal cord injuries and that the VA refuses to surgically repair his lumbar region. (Id.). Finally, he states that the VA has refused to provide him his clothing allowance since 2012, forcing him to have to appeal these denials.[4] (Id.). Jelks, as a general matter, alleges the issues with his benefits are “how the VA system has treated [him] and so many other Black Veterans” and that his lawsuit is brought “to ensure that every American Soldier, regardless of his skin color, is treated EQUALLY[.]” (Id. at 8).

         III. Analysis

         Defendants argue this Court has no subject-matter jurisdiction in part because Jelks has failed to exhaust his administrative remedies under the FTCA and under Title VII. (Doc. 8 at 5-8). Defendants also contend the Veterans Judicial Review Act (“VJRA”) bars Jelks's claims for VA benefits and that his civil rights claims against them under 42 U.S.C. § 1983 are barred by sovereign immunity. (Id. at 8-10). Additionally, although they do not develop these arguments beyond assertion, Defendants argue the complaint should be dismissed for insufficient process and insufficient service of process under Rule 12(b)(4) and (5), for improper venue under Rule 12(b)(3), and for lack of personal jurisdiction under Rule 12(b)(2). (Id. at 10-11). In his response, Jelks contests the issue of improper service and explains his retaliation claim; he does not address any of the issues Defendants raise as to subject-matter jurisdiction. (See doc. 11 at 2). Jelks's sur- reply again does not offer a counterargument, but instead discusses justice as a general matter and requests a hearing. (See doc 15).

         A. Judicial Review of ...


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