United States District Court, E.D. Virginia, Richmond Division
DAVID P. SHURLAND, Plaintiff,
DARLENE EDWARDS, Defendant.
E. Payne Senior United States District Judge
matter is before the Court on the DEFENDANT'S RENEWED
MOTION TO DISMISS (ECF No. 16) (the "Motion"). For
the reasons set forth below, the Motion will be granted, and
the dismissal will be with prejudice.
Shurland ("Shurland"), proceeding pro se,
brings this action against Darlene Edwards
("Edwards"), the Public Affairs Officer at the
Hunter Holmes McGuire VA Medical Center ("McGuire")
the allegations in Shurland's COMPLAINT (ECF No. 1) are
difficult to discern, it appears that he (a veteran) was at
McGuire on or around August 7, 2018 (hereinafter,
"August 7") for medical care. See
generally Compl. at 1-5 (ECF No. 1); see also
ECF No. 1-1 at 3-6 (letter attached to COMPLAINT describing
August 7 incident) . On that day, in an effort to seek
assistance, Shurland attempted to go to the office of
McGuire's Director, but was stopped in the hallway by
Edwards. Id. Shurland asserts that Edwards
"assaulted" him in the hallway as he tried to get
to the Director's office. Compl. at 2. The McGuire staff
apparently had a different view, because the police were
called and Shurland was cited for disorderly conduct.
Id.; see also ECF No. 1-1 at 7 (citation).
according to Shurland, he was given a court date of October
25, 2018 on the disorderly conduct charge. Compl. at 2.
Shurland appeared on that date, and was told that "the
charge had been ultimately DISMISSED three weeks
earlier and I could leave. I believe it to have been an
unprecedented, shocking, disgraceful and horrifying
explanation." Id. (alteration in original).
Since the dismissal of his disorderly conduct charge,
Shurland alleges that he has tried to determine whether there
was "any admissible evidence introduced to support the
[disorderly conduct] charge." Id. at 3. He
asserts he has made numerous Freedom of Information Act
("FOIA") requests, but that "FOIA ETHICS ARE
BEING VIOLATED," and he has not received satisfactory
responses. Id. at 3-5 (alteration in original). He
also states that he asked the United States Attorney7 s
Office to prosecute McGuire for the way it handled the August
7 incident, but the office refused. Id. at 2. In
short, Shurland is unhappy with how the August 7 incident was
handled and appears to believe that the aftermath of that
incident evidences McGuire's mistreatment of veterans.
See id. at 1-5.
COMPLAINT makes a dizzying array of conclusory allegations of
"cover-up[s]," "harassment," and official
misconduct in the aftermath of the August 7 incident at
McGuire. See generally Compl. at 1-5. Those allegations
notwithstanding, Shurland states that he is
bringingwa Personal Injury Lawsuit" asserting
claims for [i]ntentional Battery under the Federal Torts
Claims Act (FTCA) and civil action under the False Claims
Act. . .[and] Disability and Age Discrimination" against
Edwards. Compl. at 2. Because these are the claims that
Shurland expressly pleads and because his other conclusory
allegations are difficult to make sense of (and do not
satisfy basic pleading standards), the Court reads the
COMPLAINT as asserting FTCA claims, a False Claims Act
(WFCA") claim, and claims for age and
and the United States (the "Defendants") have moved to
dismiss Shurland's COMPLAINT, see ECF No. 16,
and the parties have fully briefed the Motion. See ECF
Nos. 17, 19, 20, 21. The facts and legal contentions are
adequately presented in the materials before the Court and
oral argument would not aid the decisional process. The
matter is ripe for decision.
STANDARDS GOVERNING FED. R. CIV. P. 12(b)(1) and
Defendants move to dismiss the COMPLAINT under both
Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). The Court
recently set forth the well-established principles governing
A party may file a motion to dismiss for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If a court
finds that it does not have subject matter jurisdiction over
the case or controversy, it must dismiss the action. Of
course, the plaintiff bears the burden of establishing that
federal jurisdiction is proper.
Challenges to subject matter jurisdiction may be made in two
ways. First, a facial challenge to jurisdiction may be made
by arguing that the complaint does not allege facts that
permit the exercise of federal subject matter jurisdiction.
If that type of challenge is raised, the court must assume
that all facts alleged in the complaint are true. Second, the
challenge can be made under the theory that the
complaint's assertion of subject matter jurisdiction is
not true. In that event, a court may consider evidence
outside the pleadings.
Rowe v. Clarke, 2019 WL 2477612, at *2 (E.D. Va.
June 13, 2019); Andrews v. Taylor, 2018 WL 2108022,
at *2 (E.D. Va. May 7, 2018) (citation omitted). Claims of
sovereign immunity by the United States are properly
considered under Fed.R.Civ.P. 12(b) (1), and waivers of
sovereign immunity are strictly construed in favor of the
sovereign. See Welch v. United States, 409 F.3d 646,
650-53 (4th Cir. 2005).
to dismiss based upon Fed.R.Civ.P. 12(b) (6) are evaluated
under the following standards:
In [considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss],
we must accept the factual allegations of the complaint as
true and construe them in the light most favorable to the
nonmoving party. To survive a 12(b)(6) motion, the
"complaint must contain sufficient factual matter,
accepted as true, "to state a claim to relief that is
plausible on its face.'" A claim is "plausible
on its face," if a plaintiff can demonstrate more than
"a sheer possibility that a defendant has acted
Rockville Cars, LLC v. City of Rockville, 891 F.3d
141, 145 (4th Cir. 2018) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) and Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court "may
consider documents attached to the complaint or the motion to
dismiss so long as they are integral to the complaint and
authentic." Rockville Cars, 891 F.3d at 145
(citation omitted). Notwithstanding those basic principles,
however, the Court does not "accept as true a legal
conclusion couched as a factual allegation." SD3,
LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422
(4th Cir. 2015) (citation omitted). "Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal,
556 U.S. at 678.
courts construe pro se complaints liberally. As the
Supreme Court has instructed, "[a] document filed
pro se is 'to be liberally construed,' and
'a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.'" Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations
omitted). That said, "[p]rinciples requiring generous
construction of pro se complaints are not. .
.without limits." Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
Shurland's largely incoherent and rambling pro
se COMPLAINT liberally, he alleges various FTCA claims,
a claim under the FCA, and "Disability and Age
Discrimination." As set forth below, all of these claims
fail, and the Motion is granted. And, although Shurland is
pro se, amendment of his COMPLAINT would be futile;
therefore, dismissal will be with prejudice.
The FTCA Claims Are Dismissed For Lack Of
states that he is "filing a Personal Injury Lawsuit,
with Intentional Battery under the Federal Torts Claims Act
(FTCA)" against Edwards, a federal employee at
McGuire. Compl. at 2 (ECF No. 1) . Shurland also
makes vague references (in different parts of the COMPLAINT)
to "Defamation of Character" and
assault. Id. at 1-2. The analysis under
the FTCA is the same for all of these claims because they are
all intentional torts for which the United States has not
waived sovereign immunity.
Shurland's FTCA Claim Is Against the United
discussing Shurland's FTCA claims against Edwards, it is
necessary to address a threshold issue: is Edwards the proper
party for the FTCA claims? The answer is "no."
Fourth Circuit recently discussed the issue of FTCA actions
against federal employees and when the United States is
properly substituted for the federal employee. See Doe v.
Meron, __ F.3d __, 2019 WL 2838403, *l-2 (4th Cir. July
3, 2019). Under the FTCA, a federal employee is immune from
personal liability suits if the claims arise "within the
scope of their employment." Id. at *1; Maron,
126 F.3d at 321. The United States Attorney (or the United
States Attorney General) must "certify" that the
employee was acting in the scope of his or her ...