United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. §
1915(e)(2)(B) on the Amended Prisoner's Civil Rights
Complaint filed by Plaintiff, Bill Val Vasquez on December
16, 2016, (Doc. 14) (“Amended Complaint”). The
Court concludes that the Amended Complaint fails to state a
claim on which relief can be granted under §
1915(e)(2)(B) and will dismiss the case.
Vasquez brought civil rights claims against Ayudando
Guardians Inc. (“Ayudando Guardians”), a private
company providing guardianship services to veterans under
contract with the United States Department of Veterans
Affairs and against the Department of Veterans Affairs
Regional Office. Plaintiff asserted jurisdiction pursuant to
42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
(Doc. 1) at 2. The Complaint alleged that Defendants have
taken his money without due process of law. (Doc. 1) at 1-4.
Vasquez sought an award of several million dollars in damages
and to have complete control of his veteran's benefits
turned over to him. (Doc. 1) at 5.
December 5, 2016, the Court dismissed Vasquez's original
Complaint for failure to state a claim. (Doc. 11). Consistent
with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991), the Court also granted Vasquez leave to file an
amended complaint. (Doc. 11). Vasquez filed his Amended
Complaint on December 16, 2016. (Doc. 14). Vasquez makes
essentially the same allegations against the Department of
Veterans Affairs and Ayudando Guardians that he made in his
original Complaint, but adds additional allegations about
obtaining a particular diabetes treatment from the Department
of Veterans Affairs. (Doc. 14) at 1-4. Vasquez again seeks
several million dollars in damages, to be allowed to manage
his own veteran's benefit funds, and to be put on a list
for treatment of the “New Drug to Cure
Diabetics.” (Doc. 14) at 3.
for Failure to State a Claim
Vasquez is proceeding pro se and in forma pauperis.
The Court has the discretion to dismiss an in forma
pauperis complaint sua sponte for failure to
state a claim upon which relief may be granted under either
Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B).
Under Fed.R.Civ.P. 12(b)(6), the Court must accept all
well-pled factual allegations, but not conclusory,
unsupported allegations, and may not consider matters outside
the pleading. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007); Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989). The Court may dismiss a
complaint under Rule 12(b)(6) for failure to state a claim if
“it is ‘patently obvious' that the plaintiff
could not prevail on the facts alleged.” Hall v.
Bellmon, 935 F.2d at 1109 (quoting McKinney v.
Oklahoma Dep't of Human Services, 925 F.2d 363, 365
(10th Cir. 1991)). A plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. A claim
should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 555.
section 1915(e)(2)(B), the Court may dismiss the complaint at
any time if it determines the action fails to state a claim
for relief or if the claim is frivolous or malicious. 28
U.S.C. § 1915(e)(2)(B)(ii). The authority granted by
section 1915 permits the Court the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); see also Hall v. Bellmon, 935 F.2d at 1109.
The authority to “pierce the veil of the
complaint's factual allegations” means a court is
not bound, as it usually is when making a determination based
solely on the pleadings, to accept without question the truth
of the plaintiff's allegations. Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992). Further, a court
is not required to accept the truth of a plaintiff's
allegations but, instead, may go beyond the pleadings and
consider any other materials filed by the parties, as well as
court proceedings subject to judicial notice.
Denton, 504 U.S. at 32-33.
reviewing a pro se complaint, a court liberally construes the
factual allegations. See Northington v. Jackson, 973
F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants, and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10thCir.
1994). A court is not obligated to craft legal theories for
the plaintiff or to supply factual allegations to support the
plaintiff's claims. Nor may a court assume the role of
advocate for the pro se litigant. Hall v. Bellmon,
935 F.2d at 1110.
of Vasquez's Claims
1983 provides a federal civil remedy for the deprivation of
any rights, privileges, or immunities secured by the
Constitution by any person acting under color of state law.
Section 1983 only authorizes suits against persons acting
under color of state law. See McCarty v. Gilchrist,
646 F.3d 1281, 1285 (10th Cir. 2011). The state
action doctrine requires that the deprivation must be caused
by the exercise of some right or privilege created by the
state or by a rule of conduct imposed by the state or by a
person for whom the state is responsible and the party
charged with the deprivation must be a person who may fairly
be said to be a “state actor.” Stone v.
Elohim, Inc., 336 Fed. App'x 841, 842 (10th Cir.
2009) (quoting Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 937 (1982)). The Department of Veterans Affairs is
an agency of the United States, not a state entity. As such,
it never acts under color of state law. Ayudando Guardians is
a private entity providing services under contract with a
federal agency. It, similarly, does not act under color of
state law. See Browder v. Anderson, 2008 WL 1884093
(W.D. Ky 2008); Aragon v. Ayudando Guardians, No. CV
07-00669 MV/RHS (D.N.M. February 15, 2008) (Vazquez, J.). The
Amended Complaint fails to state any claim for relief against
the Department of Veterans Affairs Regional Office or
Ayudando Guardians under 42 U.S.C. § 1983. McCarty
v. Gilchrist, 646 F.3d at 1285.
Amended Complaint also fails to state any claim for relief
pursuant to Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens creates a cause of action against federal
officials similar to the cause of action that section 1983
creates against state officials. However, Bivens
only applies to individual federal officials, and
Bivens claims against the United States and its
agencies are barred by sovereign immunity. FDIC v.
Meyer, 510 U.S. 471, 484-85 (1994); Greenlee v. U.S.
Postal Service, 247 F. App'x 953, 955
(10th Cir. 2007). Plaintiff's Amended
Complaint does not identify any individual federal officers;
the claims against the Department of Veterans Affairs are
barred by sovereign immunity; and Ayudando Guardians is not a
federal entity. Therefore, any Bivens claim for
damages against Ayudando Guardians and the Department of
Veterans Affairs also fails under 28 U.S.C. §
extent that Plaintiff attempts to assert claims against any
official in their individual capacity pursuant to Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), those claims are
dismissed as well. Bivens generally allows an
individual to sue federal officials for money damages arising
from a violation of the individual's constitutional
rights. However, a plaintiff may not sue Veterans Affairs
employees in their individual capacities based solely on
their acts or omissions relating to benefits determinations
in light of the “comprehensive remedial structure [that
exists] to address disputes regarding disability ... benefits
claims by veterans.” Sugrue v. Derwinski, 26
F.3d 8, 12 (2d Cir. 1994) (“[T]he scheme of
review for veterans' benefit claims provides meaningful
remedies in a multitiered and carefully crafted
administrative process....Congress has declined to enact the
remedy that [plaintiff] asks us to create against the VA
Employees.”); accord Hassan v. U.S. Dep't of
Veterans Affairs, 137 Fed.Appx. 418, 420 (2d Cir. 2005)
(finding Bivens claim was properly dismissed by
district court in case where plaintiff asserted claims for
expulsion from Veterans Affairs facility).
Vasquez's Amended Complaint fails to state any plausible
civil rights or Bivens claim for relief.
Accordingly, the Court will dismiss the Amended Complaint
under 28 U.S.C. § 1915(e)(2)(B), and Twombly,
550 U.S. at 555. However, the Court takes judicial notice of
the pendency of federal charges against Ayudando Guardians
relating to their trust administration of veterans'
benefits. Therefore, the Court dismisses Plaintiff
Vasquez's claims without prejudice to his right to assert
administrative claims relating to his alleged deprivation of
his veteran's benefit payments. See United States v.
Ayudando Alpha, Inc., No. CR 17-01836 MV.
pending before the Court are two letter requests by Vasquez
to amend his Complaint. (Doc. 18, 27). In his first letter
request, Vasquez seeks to make additional allegations against
the Department of Veterans Affairs and officials of the
Department. (Doc. 18). For the reasons set out above, the
proposed amendments would not state any claim for relief.
Sugrue v.Derwinski, 26 F.3d at 12; Hassan v.
U.S. Dep't of Veterans Affairs, 137 Fed.Appx. at
420. The ...