The opinion of the court was delivered by: Michael P. McCUSKEY United States District Judge
Thursday, 30 August, 2012 02:10:23 PM Clerk, U.S. District Court, ILCD
On June 28, 2012, Magistrate Judge David G. Bernthal filed a sua sponte Report and Recommendation (#71) in the above cause. The Magistrate Judge recommended that this court is bereft of subject-matter jurisdiction to hear the case. After a careful and thorough de novo review, this court agrees with and accepts the Report and Recommendation of the Magistrate Judge. Accordingly, this case is DISMISSED for lack of subject-matter jurisdiction.
Further, Plaintiff's Motion for Preliminary Injunction (#23), Motion to Amend (#61), and Motion for Status (#72) are DISMISSED as MOOT.
Plaintiff alleges that during and before the incident giving rise to the present suit, he had been receiving medical benefits from the VA. (#1 p.5). On March 17, 2009, Plaintiff underwent back surgery at the Indianapolis VA Medical Center. (#1 Ex. 1 p. 6). Plaintiff experienced significant complications during and after the surgery, which required the resection of the right side of his colon and the removal of parts of his small intestine. (#1 p. 6). He avers that he "only went in to get my spine double fused and ended up losing over half my bowels and the right side of my colon."*fn1 (Id.). Plaintiff further alleges that due to the need to recover from the complications, he was repeatedly hospitalized from time to time between March 16, 2009 and April 10, 2010. (#1 p. 7).
On March 9, 2010, Plaintiff filed a VA Form 21-526 Application for Compensation and/or Pension. (#78, Ex. 2). In the application, he states that "[d]uring a fusion of L4, L5, S1 on my spine, all the mistakes [have] caused the right side of my colon [and] six places [on my] small intestine [to be] removed and more to be removed  along with my gallbladder, none of this was my fault. I had none of these problems when I entered the hospital for back surgery. These were all the VA's mistakes [that] has ruined my life. I'm disfigured and permanently disabled[.] This has already cost me a year in the hospital." (#78 ex. 2).
In a letter dated June 23, 2010, Defendant Department of Veterans Affairs sent Plaintiff a letter informing him that the VA Illiana Health Care System had determined that Plaintiff was ineligible for healthcare benefits. (#1; #78). The letter stated, among other things, that "[t]he evidence we reviewed shows that you have no wartime service. Your service records show you served on active duty from September 5, 1979 to November 30, 1979." (Id.) Further, the letter also states: "Based on review of your DD214, it has been determined that you served active duty for training purposes only and you are not eligible for VA medical care." (Id.) (emphasis in original.) As a result, Plaintiff was no longer able to receive medical care through the Department of Veterans Affairs. (Id.)
Plaintiff filed a Notice of Disagreement appealing the denial of his benefits on July 25, 2011. (#1 Ex.1 p.9; #78 Ex. 4). Plaintiff avers that "[t]his issue is still on going and has no regards to the complaint that is being filed for being cut off immediately from medical service that endangered the life and well-being of the plaintiff." (#1 p. 4). Plaintiff further notes that "as for the benefit issue of 15 years of being at the VA and request for compensation a Notice of Disagreement has been filed to the Department of Veterans Affairs but these matters are separate from this." (#73 p. 4).
In his application for compensation, VA Form 21-526, Plaintiff claimed that he entered active service on September 5, 1979, and left on August 12, 1985 (#78 Ex.1 p.4). However, Defendant VA provided declarations showing that Plaintiff enlisted for active full time duty with the U.S. Army on September 5, 1979, and was enrolled in basic training between September 5, 1979 and November 30, 1979, whereupon he was discharged from active duty while still in basic training. (#76 ¶¶ 1-3; #82 p.6 (Defendant's DD214)). Plaintiff provided his own DD214, which indicates that he entered active duty on September 5, 1979 and was honorably discharged on November 30, 1979 pursuant to the Trainee Discharge Program, the reason given as "marginal or nonproductive." (#82 p.6). For this period, his MOS was listed as 05C00 -- "Basic Trainee". On June 18, 1983, Plaintiff was ordered to active duty for training for 60 days to attend OSUT (One Station Unit Training, a combination of basic combat training and advanced individual training) for MOS 13b, cannon crewmember. Finally, Plaintiff's DD214 indicates that his Reserve Obligation Termination Date was August 12, 1985.
On September 19, 2011, Plaintiff filed his initial complaint (#1) along with a petition to proceed in forma pauperis (#2) and a motion to appoint counsel (#3). Plaintiff alleges that as a result of his "filing a complaint on 3-31-10 for the happenings from the surgery on 3-17-09 leaving me hospitalized and disabled is the reason they instantly stopped all services to include life threatening medications and life-threatening treatments;" "the Veterans Affairs Administration negligently and unconstitutionally [infringed] my rights and endanger me and threatened my life by immediately stopping all medications and treatments;" and thus, "because of the withdrawal changed my ways of thinking and caused actions out of myself that caused me to break the law and get an even longer sentence because of the major withdrawal from all the medications from the injuries that the VA inflicted on me." (#1 p. 8).
On October 13, 2011, Magistrate Judge Bernthal allowed Plaintiff to proceed without prepayment of fees (#14) but denied the motion to appoint counsel (#15). On June 28, 2012, Magistrate Judge Bernthal issued a sua sponte Report and Recommendation, recommending that this court dismiss the case due to a lack of subject-matter jurisdiction (#74). On July 11, 2012, Plaintiff filed an objection (#73); on July 13, 2012, Defendant VA filed a motion to file additional evidence (#74); and on July 24, 2012, Defendant VA filed its Response to Plaintiff's Objection, along with a Motion for Summary Judgment (#76) and with four declarations (#77-#80). On July 26, 2012, Plaintiff filed an amendment to his objection (#82). ...