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Stewart v. United States Department of Veterans Affairs

United States District Court, Sixth Circuit

September 4, 2013




Pro se Plaintiff Kenneth A. Stewart filed this action against the United States Department of Veterans Affairs ("VA") under Bivens [1], 18 U.S.C. §§ 241, 242, 1001, 1341 and 1346, the Freedom of Information Act ("FOIA") 5 U.S.C. §522, the Federal Records Act ("FRA") 44 U.S.C. §§ 3101-3106, and the Racketeer Influenced Corrupt Organizations Act ("RICO") 18 U.S.C. § 1964(c).[2] He also asserted claims arising under Ohio law. In the Complaint, Plaintiff asserts the VA did not properly maintain and store veteran records and failed to produce documents he requested under the Freedom of Information Act. He seeks monetary relief and an order requiring the United States Archivist to monitor and correct records retention problems within the VA.

Plaintiff also filed an Application to Proceed In Forma Pauperis. (ECF No. 2). That Application is granted.


Plaintiff is an unemployed veteran with numerous medical problems, including post traumatic stress disorder, bipolar disorder, general anxiety disorder, anemia, panic attacks, congestive heart failure, coronary artery disease and diabetes. In 2008, he applied for a non-service pension and for service-connected disability for loss of use of his left knee, a "right knee condition, " a left "non-dominant shoulder condition, " and erectile dysfunction. The Veterans Regional Office responded that they needed additional information to process his applications. His requests for service related disability were denied in June 2008 and March 2009. The reason given for the decision was that additional medical information was required to support his claims. Plaintiff appealed the denial of benefits and requested a hearing.

Plaintiff initiated a series of requests to obtain records to support his applications. In response to one request, the Veterans Affairs Medical Center ("VAMC") warned Plaintiff that it may be difficult to obtain all of the records he requested because some were more than 40 years old, and records were not typically held that long. In June 2011, VAMC employee Deloris Cloud informed Plaintiff that they did not have records from 1970-1972. Plaintiff did not accept this response and notified Cloud that the VAMC had a legal responsibility to protect his records and demanded that she advise him when the records would be available for pick up.

In July 2011, Plaintiff filed a Freedom of Information Act ("FOIA") request with the VA seeking his records from April 1, 1970 through May 31, 1972. He alleges that in response to the request, the VAMC produced some of his records from 1973 to 1987. On October 3, 2011, the VA FOIA Officer notified Plaintiff that the search was complete and there were no additional documents responsive to his request. Plaintiff did not believe the agency had been sufficiently thorough in its search and wrote to the FOIA Officer at the VA in May 2012 and July 2012 asking the agency to search a second time. The FOIA Officer indicated he would contact the Chief Health Information Officer in Cleveland, because if any additional records did exist, they would be in Cleveland. Plaintiff received a response from the Cleveland office on December 20, 2012 indicating they could not locate any additional records.

Plaintiff asserts the VA did not comply with his records request. He claims they are required by statute to maintain and properly store his records and therefore must have his records somewhere. He alleges that the VAMC in Cleveland moved three trucks full of veteran's records from a warehouse in Virginia to a warehouse in Neosho, Missouri. He theorizes that "somehow the labeling on the box...that says what's in the box was damaged or lost." (ECF No. 1 at 9). He concludes that warehouse personnel do not want to search through each and every box to locate a particular file that may have been misplaced or mislabeled. He contends the VA has "chosen to think that [FOIA] does not apply to them, their [sic] wrong, nor do they think that USC 44 apply [sic] to them, and do as they please." (ECF. No. 1 at 35). He asserts claims for violations of FOIA, RICO, FRA, six criminal statutes, constitutional rights and various state contract and tort laws. He seeks compensatory and punitive damages, and an Order directing to the National Archivist and the VA to automate its records maintenance system and check its records bi-monthly to ensure the system is operating without flaws.


Standard of Review

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. The Plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

No Private Right of Action

As an initial matter, Plaintiff claims the VA did not properly maintain its records as required. He brings a claim under the Federal Records Act ("FRA") to obtain damages and to compel the VA to devise a better system for maintaining veterans' records. The FRA, however, does not confer a private right of action on private parties. Kissenger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 148 (1980). Only the Attorney General can bring an action to enforce provisions of the FRA. Id. In enacting this statute, Congress expressly recognized the need for devising adequate statutory safeguards against the unauthorized removal or destruction of agency records, but created a system of administrative standards and enforcement. Id. Therefore, even if the VA violated the FRA with respect to handling Plaintiff's records, Congress did not vest this Court with jurisdiction to adjudicate that question in a civil lawsuit by a private party. Id.

Similarly, Plaintiff contends VA personnel violated 18 U.S.C. §§ 241, 242, 1001, 1341, and 1346. These are criminal statutes. They provide no private right of action. U.S. v. Oguaju, No. 02-2485, 2003 WL 21580657, *2 (6th Cir. July 9, 2003); Robinson ...

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