United States District Court, D. Kansas
GABRIEL M. ROBLES, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge
M. Robles, pro se, brings suit against the United States of
America for claims arising out of his treatment by medical
providers at the Veterans Administration
(“VA”). See Pretrial Order (Doc. #31)
filed March 30, 2016 at 2-3. Specifically, plaintiff asserts
claims under the Federal Tort Claims Act, 28 U.S.C. §
2671 et seq. (“FTCA”) for medical
malpractice and civil conspiracy to libel and/or slander
plaintiff. See Pretrial Order (Doc. #31) at 2-3. The
case is set for a three-day bench trial beginning February
27, 2017. On January 25, 2017 the Court entered summary
judgment in favor of defendant on the medical malpractice
claim(s). See Memorandum And Order And Order To Show
Cause (Doc. #39) at 11. In addition, the Court ordered
plaintiff to show cause in writing why it should not dismiss
the conspiracy claim(s). See id. at 12.
Specifically, the Court noted that under 28 U.S.C. §
2680, the United States' waiver of sovereign immunity
does not apply to certain intentional torts, including
“any claim arising out of . . . libel [or]
slander.” Id. (citing 28 U.S.C. § 2680(h)
and Lipkin v. S.E.C., 468 F.Supp.2d 614, 624
(S.D.N.Y. 2006)). The Court specifically warned plaintiff
that “failure to timely file a response which
sufficiently sets forth the factual and legal basis for such
claim(s) will likely result in dismissal of his claim(s) with
prejudice without further notice.” Memorandum And
Order And Order To Show Cause (Doc. #39) at 11.
responds to the show cause order with eight pages of rambling
accusations, most of which appear to be unrelated to the
claim(s) at hand. See Plaintiff's Answer To
“Order To Show Cause” Dated January 27, 2017.
(Doc. 39) (“Plaintiff's
Response”) (Doc. #40) filed February 6, 2017 at
1-8. Plaintiff alleges that the Court has a pattern and
practice of siding “with the party that can afford
legal counsel and is Caucasian.” Id. at 1. In
addition, plaintiff points to an alleged scandal in which the
U.S. Attorney's Office allegedly violated the
attorney-client privilege in criminal cases. See id.
at 5, 7.
suggests that the Court should reconsider its summary
judgment ruling on the medical practice claim. See
id. at 8. Plaintiff asserts that defendant filed its
motion for summary judgment in the eleventh hour and
“most probably out of time.” Plaintiff's
Response (Doc. #40) at 7. The Court's scheduling
order set a deadline of April 13, 2016 for dispositive
motions, including motions for summary judgment. See
Scheduling Order (Doc. #22) filed September 9, 2015 at
8. Defendant filed its motion for summary judgment on April
4, 2016, nine days before the deadline expired. See
Defendant's Motion To Dismiss Complaint Or, In The
Alternative, Motion For Summary Judgment (Doc. #32). The
Court granted summary judgment because plaintiff did not
designate expert witness testimony on the applicable standard
of care or to prove causation. See Memorandum And
Order And Order To Show Cause (Doc. #39) at 10.
Plaintiff seems to suggest that the Court should have raised
the issue of expert witnesses during pretrial proceedings.
See Plaintiff's Response (Doc. #40) at 4-5. The
Court, however, cannot serve as advocate for a pro se
litigant. See Hall v. Bellmon, 935 F.3d 1106, 1110
(10th Cir. 1991). To the extent that plaintiff asks the Court
to reconsider its summary judgment ruling, it declines to do
so. See D. Kan. Rule 7.3(b) (motion for
reconsideration must be based on intervening change in
controlling law, availability of new evidence or need to
correct clear error or prevent manifest injustice); Cline
v. S. Star. Cent. Gas Pipeline, Inc., 370 F.Supp.2d
1130, 1132 (D. Kan. 2005) (motion for reconsideration
inappropriate for issues already addressed or new arguments
or facts which movant could have presented originally).
noted, in the show cause order, the Court directed plaintiff
to set forth the factual and legal basis for his claim(s) for
civil conspiracy to libel and/or slander
plaintiff. See Memorandum And Order And Order To
Show Cause (Doc. #39) at 12. In his response, plaintiff
sets forth a litany of factual allegations regarding his
experiences with a housing program for veterans that he
alleges defendant controls. See Plaintiff's
Response (Doc. #40) at 5-6. Even if the allegations
sufficiently set forth the factual basis for his claim,
plaintiff provides no legal basis to support the claim.
Pursuant to 28 U.S.C. § 2680(h), the FTCA does not apply
to certain intentional torts, including claims arising out of
libel or slander. Because the United States has not waived
sovereign immunity with respect to such claims, the Court
lacks subject matter jurisdiction over them. See Lipkin
v. S.E.C., 468 F.Supp.2d 614, 624 (S.D.N.Y. 2006).
Accordingly, the Court dismisses plaintiff's claim(s) for
civil conspiracy to libel and/or slander plaintiff.
IS THEREFORE ORDERED that plaintiff's claim(s)
for civil conspiracy to libel and/or slander plaintiff be and
hereby are DISMISSED for lack of subject
IS FURTHER ORDERED that the Clerk is directed to
enter judgment in favor of defendant on plaintiff's
claim(s) for medical malpractice.
IS FURTHER ORDERED that the trial set for February
27, 2017 is CANCELLED.
 Plaintiff also sued various VA
facilities. See Complaint (Doc. #1) filed April 1,
2015 at 1. On July 16, 2015, the Court dismissed all claims
against the VA and its facilities, finding that the United
States is the only proper defendant. See Order (Doc.
15) at 1-2.
 Plaintiff questions whether
“corruption” is why the Court encourages pro se
litigants to use public libraries for computer access.
Plaintiff's Response (Doc. #40) at 7.
 The Court also found that
plaintiff's alleged injury does not fall under the common
knowledge of the jury. See Memorandum And Order And Order
To Show Cause (Doc. #39) at 10-11.
 In the pretrial order, plaintiff
alleges that after committing medical malpractice,
“defendant under the pretense of assisting the
Plaintiff with housing, then put into action a conspiracy in
the defendants' facilities to libel and slander the
Plaintiff in order to side-step any and all liability for
malpractice which caused Plaintiff's ...