United States District Court, D. Kansas
Donald Draughon, (firstname.lastname@example.org) Father and Natural Parent of minor R. B. minor D. C. minor M. D., Plaintiff, Pro se, Kansas City, MO.
For United States of America, U.S. Department of Veterans Affairs, Office of the Attorney General, United States Attorney, Defendants: Jason E. Oller, LEAD ATTORNEY, Wichita, KS.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
Plaintiff Donald Draughon, proceeding pro se and in forma pauperis, brings this Federal Tort Claims Act (" FTCA" ) action against the United States of America, Department of Veterans Affairs, Office of Attorney General, and United States Attorney. Plaintiff alleges that Defendants are liable for the death of his son, William Draughon, because they negligently treated his son's post traumatic stress disorder (" PTSD" ), which ultimately led to his suicide. He purports to file this case on his own behalf, and on behalf of Williams Draughon's minor children, R.B., D.C., and M.D. This matter is before the Court on the Government's Motion to Dismiss Or, In The Alternative, For Transfer of Venue (Doc. 15). Plaintiff also requests a transfer of venue in his response (Doc. 31). This matter is now fully briefed and the Court is prepared to rule.
The Government's motion to dismiss for lack of subject matter jurisdiction is granted with respect to (1) Defendants Department of Veterans Affairs, Office of Attorney General, and United States Attorney based on sovereign immunity; (2) any alleged claim that arises from William Draughon's active duty service; and (3) any claim concerning veteran's benefits. It is otherwise denied. The Government's motion to dismiss for failure to state a claim is granted in part and denied in part. The motion is granted as to any survival action asserted under state law. And as explained in further detail below, assuming as true the facts alleged in the Complaint and viewing those facts in the light most favorable to Plaintiff, Missouri law may apply and permit Plaintiff's wrongful death claim in his capacity as an heir of William Draughon. The Court also denies the parties' motions for transfer and appoints counsel to represent Plaintiff.
I. Factual and Procedural Background
The following facts are alleged in the Complaint and assumed to be true for purposes of this motion. Because Plaintiff is a pro se litigant, the Court will construe his pleadings liberally and apply a less stringent standard than that which is applicable to attorneys. However, the Court may not provide additional factual allegations " to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."  The Court need only accept as true the plaintiff's " well-pleaded factual contentions, not his conclusory allegations." 
Plaintiff's son William Draughon enlisted as a United States Marine in March 2001 and served several tours overseas. In October 2005, William Draughon returned from a tour in Iraq to San Diego, California. There, William Draughon decided not to re-enlist as a Marine. Even so, he was required to officially stay in the Marine Corps until February 2006. During those several months, he and his colleagues who were not re-enlisting with the Marines were only required to work for a few hours at the base each day. There was little structure and almost no rules. Plaintiff, William Draughon's father, claims that the lack of rules, structure, and treatment for Marines who recently returned from combat led to months of alcohol and substance abuse.
The substance and alcohol abuse continued after William Draughon returned home to Kansas City, Missouri. For the next five years, through the Department of Veterans Affairs (VA), William Draughon was treated for his mental and physical illnesses. He was admitted to inpatient programs and frequently saw doctors both in Kansas and Missouri. William Draughon faced a mountain of problems because of his physical and mental illnesses, which likely resulted from his service overseas. He was separated and divorced, fathered two children from different mothers, abused alcohol and drugs, accumulated a significant amount of debt, and consistently struggled to control his depression and suicidal thoughts. On March 17, 2010, William Draughon committed suicide in Kansas City, Missouri.
Plaintiff filed an administrative complaint with the Veterans' Administration (" VA" ), and the VA issued a final denial of the administrative claim on December 6, 2013. Plaintiff then timely filed this action. Plaintiff alleges that the Government was negligent in its treatment of William Draughon's PTSD and other mental health issues, and that, if not for the Government's negligence, William Draughon would not have committed suicide. The Court liberally construes the Complaint as alleging wrongful death and survival claims under the Federal Tort Claims Act (" FTCA" ).
II. Subject Matter Jurisdiction
Unlike state courts, federal courts are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to exercise jurisdiction. A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking. The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Here, " [P]laintiff bears the burden of showing why the case should not be dismissed."  Mere conclusory allegations of jurisdiction are not enough.
A motion to dismiss for lack of subject matter jurisdiction is made under Rule 12(b)(1). Generally, a Rule 12(b)(1) motion to dismiss takes one of two forms: a facial attack or a factual attack. " First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true."  " Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)."  Here, the Government makes both a facial and factual attack on this Court's subject matter jurisdiction.
The Government argues that this Court lacks subject matter jurisdiction over Plaintiffs claims on the following grounds: (1) sovereign immunity as to the federal agencies named as defendants; (2) administrative exhaustion; and (3) any claim concerning a previous disability determination by the VA under 38 U.S.C. § 511(a). The Court discusses each in turn.
1. Sovereign Immunity
Liberally construing the Complaint, Plaintiff alleges claims of wrongful death medical malpractice and survival based on the acts or omissions of various government agencies that oversaw William Draughon's mental health treatment after his Iraq tours. It is well-settled that the United States can only be sued if it consents. The FTCA serves as a waiver of sovereign immunity by the United States with respect to certain injuries caused by United States employees in the course of their employment. But agencies of the United States cannot be sued in their own name because plaintiffs only have a remedy against the United States. Because Plaintiff's claim is only authorized under the FTCA, the only party he can sue is the United States. All other Defendants are therefore dismissed.
Additionally, the FTCA does not waive the United States' immunity with respect to injuries that " arise out of or are in the course of activity incident to service."  Therefore, if Plaintiff alleges injuries to William Draughon that are incident to his military service, the Feres doctrine applies and this Court lacks subject matter jurisdiction to hear the case. The facts alleged in the Complaint suggest injuries to William Draughon both before and after his military service concluded. To be sure, Plaintiff's medical treatment in the Kansas and Missouri areas, to which the majority of factual allegations relate, occurred after his active duty service concluded. The Feres doctrine does not apply to " torts that arose after completion of an individual's military ...