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Duffy v. Department of Veterans Affairs

United States District Court, N.D. Florida, Pensacola Division

April 25, 2019

MUJAAHIDA DUFFY, Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS; PETER O'ROURKE, SECRETARY OF DEPARTMENT OF VETERANS AFFAIRS; BRYAN C. MATTHEWS, GULF COAST VETERANS HEALTH CARE SYSTEM DIRECTOR; DR. LINDA COX; and ELLA CVIRKO, OUTPATIENT CLINIC DENTIST; Defendants.

          REPORT AND RECOMMENDATION

          HOPE T. CANNON UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pro se, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), [1] asserting a myriad of alleged statutory and constitutional violations against the Defendants. Plaintiff's claims are based on events that occurred at a VA clinic when Plaintiff was seeking dental treatment on May 9, 2018, and the actions that allegedly took place after she was denied treatment. ECF Doc. 10 at p. 1.

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After careful consideration of the complaint (ECF Doc. 1), Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF Doc. 10) and Plaintiff's response (ECF Doc. 13), the undersigned concludes this case should be dismissed pursuant to the Veterans Judicial Review Act (“VJRA”) for lack of subject matter jurisdiction.

         I. PLAINTIFF'S ALLEGATIONS

         Plaintiff takes issue with various conduct she contends was engaged in by the Defendants, all of which arises out of her visit to a VA clinic for a scheduled dental examination. Specifically, Plaintiff alleges she went to Defendant Dr. Cvirko for dental treatment, treatment was twice denied and Dr. Cvirko “appeared to be unreasonably hostile towards [Plaintiff] for two reasons”: Plaintiff is “identified in VA records . . . as a member of the LGBT community” and Plaintiff “had to correct her on the fact she was not there to deny [Plaintiff] treatment of an approved crown.” ECF Doc. 1 at p. 10. Additionally, according to Plaintiff, during one of these visits, Dr. Cvirko called in a VA Police Officer Donald Basset to question Plaintiff when she “had done nothing.” Id. Plaintiff contends Dr. Cvirko refused to treat her because she incorrectly identified her as a former male and refused to accept her as a female. Id. at 14.

         After her second appointment with Dr. Cvirko, Plaintiff complained to Defendant Matthews and Dr. Taylor “by complaint to Patient advocate” and was told by Dr. Taylor that her request for a crown was approved and that Dr. Cvirko would not be her dentist. Id. at 10. Subsequently, and presumably as a result of her interactions with Dr. Cvirko, Plaintiff claims she received a letter in June 2018 from the VA indicating that a “National Behavioral Flag” had been entered against Plaintiff. Id. Plaintiff disagrees with the placement of this flag and seeks an order from this Court requiring its removal. Id. at 14. Plaintiff next claims the VA suspended her access to VA Secure Messaging[2] “because of criminal behavior.” Id. at 10. Plaintiff takes issue with this suspension and seeks to have her access restored. Id. at 14.

         Plaintiff also complains about the procedures followed by the VA's behavioral health care committee (which resulted in the behavioral flag notation and the suspension of her access to Secure Messaging) and describes it as a system which allows VA employees “to complain against the veteran, [and] involves the police and police reports and action without due process.” Id. at 10-11. Plaintiff says, in contrast, veterans who have complaints must go through the Patient advocate and thus, “[t]he employees [sic] complaint process works very well against the veteran, while the Patient advocate system given to the veteran is as useless as the compensation system.” Id. at 11. She asserts the VA's behavioral health care committee complaint process violated her Fourth and Fifth Amendment rights, as well as her right to equal protection.

         Plaintiff further makes the following allegations with regard to other named Defendants:

• She complains Defendant Kevin Lee violated her constitutional rights by seeking to have a police officer attend their meeting because of the flag on her account and by refusing to close the door during their discussion.
• She complains Defendant Mathews, as the Director, is vicariously liable for Lee's conduct and further violated her constitutional rights by allowing the police to be used against veterans and by using the behavioral health care committee as a “private VA court were [sic] veterans are accused without due process and than [sic] sanction limiting healthcare are taken against them.”
• She complains Dr. Cox violated her constitutional rights by adjudicating [her] guilty of these criminal crimes and punishing [her] without access to a trial and or an appeal process.”

Id.

         Finally, Plaintiff claims the VA and Dr. Cvirko violated section 1557 of the Affordable Care Act (42 U.S.C. 18116) when Dr. Cvirko refused treatment to Plaintiff and the VA violated the Privacy Act of 1974 by the way it handles “gender development issues and the privacy around them, ” namely that the VA uses an electronic flag to tell ...


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