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Holmes v. United States

United States District Court, S.D. Mississippi, Eastern Division

October 1, 2019

LINDA JEFFERSON HOLMES, INDIVIDUALLY AND ON BEHALF OF KENTRON S. HOLMES, A VA RATED, 100% TOTALLY AND PERMANENTLY SERVICE- ONNECTED, DISABLED AMERICAN VETERAN PLAINTIFFS
v.
THE UNITED STATES, ITS U.S. SECRETARY OF VETERANS AFFAIRS, HON. ROBERT WILKE, DULY APPOINT HEAD OF THE DEPT. OF VETERANS AFFAIRS, ITS G.V. “SONNY” MONTGOMERY V.A. MEDICAL CENTER, ITS CAREGIVER SUPPORT PROGRAM, AND ITS LOUISVILLE FIDUCIARY HUB DEFENDANTS

          Linda Jefferson Holmes, pro se

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         This cause came before the Court on Defendants' Motion to Dismiss [17]. Plaintiffs have responded [21], and Defendants filed a reply [22]. The Defendants move to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction. The Court acknowledges from the outset that complaints filed by pro se plaintiffs are held to a less stringent standard than complaints filed by lawyers, and documents filed by pro se litigants are “to be liberally construed . . . .” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This Court has given Plaintiffs' Complaint and response to the instant motion a thoughtful reading, but finds, nevertheless, in light of the relevant legal authority, Plaintiffs are unable to support federal jurisdiction. Consequently, for the reasons that follow, the Court grants Defendant's Motion to Dismiss.

         I. BACKGROUND[1]

         Plaintiff Linda Holmes (“Ms. Holmes”) brings this suit on her own behalf and on behalf of her son, Kentron Holmes (“Veteran Holmes”) (collectively, “Plaintiffs”), a disabled veteran for whom she is the full-time caregiver and for whom she has a power of attorney. See [2] at I. A[2]; [8-12].[3] Defendants are the United States (“DVA”); the U.S. Secretary of Veterans Affairs, Robert Wilkie; the VA Medical Center located in Jackson, Mississippi (“VAMC”); the Caregiver Support Program (“CSP”), and the Louisville Fiduciary Hub (“LFH”). [2] at I. B, C.

         In 2002 Veterans Holmes was diagnosed with a service-connected brain disease that presented as paranoid schizophrenia. [2] at III A. In 2003, Veteran Holmes first attempted suicide while suffering from hallucinations. Id. In 2006, he made his second attempt by cutting his own throat. Id. To prevent her son from successfully committing suicide, Ms. Holmes resigned from her job to provide full-time, in-home care for Veteran Holmes in September 2006. Id. By 2011 regardless of the medications prescribed, Veteran Holmes had suffered for over a decade from auditory and visual hallucinations, as well as other mental and social disabilities, including chronic paranoia. Id.

         After five years of caring for Veteran Holmes without steady or substantial income, Ms. Holmes was accepted into the Caregivers Support Program in May 2011[4] and awarded Tier-3 monthly stipend compensation through the VA Medical Center in Jackson for acting as Veteran Holmes' full-time caregiver. [2] at IV. A; [8-2][5]. Along with her initial acceptance letter, Ms. Holmes received a document titled, “YOUR RIGHTS TO APPEAL THE TIER LEVEL (CLINICAL) DECISION, ” which states, in part, as follows:

You may appeal to the VA Medical Center (VAMC) where the Veteran is receiving care by explaining why you disagree with the decision. If you are not satisfied with the VAMC Director's decision you may request to have your decision reviewed by the Veterans Integrated Service Network (VISN) Director or his/her designee.
***
A clinical appeal is your formal request to have the VAMC Director or designee reviews [sic] your dispute.
***
If you are not satisfied with the local VA facility's decision you can elect to appeal your decision to the VISN Director.
***
CAN I GET A HEARING WITH THE BOARD OF VETERANS APPEAL?
No. The clinical appeals process does not allow for you or your representative to appeal a clinical decision to the Board of Veterans Appeal. You should follow the clinical appeals process as outlined in this letter. The clinical decision is final and cannot be appealed to a higher authority.

[8-2] (hereinafter referred to as “Notice of Rights”).

         Plaintiffs claim that although Veteran Holmes still required the same level of in-home caregiving services, by 2015, the culture at the VAMC in Jackson had changed and the coordinators in the program began to make petty verbal assessments regarding Veteran Holmes' need for care. [2] at IV.B. Plaintiffs also claim that over the course of a year leading up to October 2015, Jackson CSP coordinators and the clinical review team intentionally concocted information, plotted against Plaintiffs, and falsified Veteran Holmes' medical records so as to “intentionally and maliciously” misattribute his mental illness and incompetency, which then led to a deliberate under-assessment Veteran Holmes' physical condition. [2] at IV.B. As a consequence of these deliberate acts, on October 16, 2015, Veteran Holmes' level of in-home health care was lowered from a Tier-3 to a Tier-1 level of care, [6] which Plaintiffs claim was an intentional “effort [by the VA] to deliberately place Veteran Holmes in danger of mental destabilization in an effort to induce endangerment to him and society at large.” [2] at IV.B; [8-4]. Ms. Holmes claims she was strategically targeted to be eliminated as her son's full-time in-home caregiver. Id.

         In the October 16, 2015 letter notifying Plaintiffs' of the reduction in benefits, the process for appealing stated: “You may appeal this decision in writing to the G.V. (Sonny) Montgomery VA Director or his/her designee, within 90 days of the date of this notice. A clinical appeal is your formal written request with substantiating documentation to support your dispute.” [8-4] at p. 1. Ms. Holmes had asked for an updated Notice of Rights letter, but the follow up from the VMAC indicated that information regarding her right to appeal had been noted in the October 16, 2016 letter. [8-4] at p. 11. Plaintiffs also received a notice from the VA Caregiver Support Program office in Denver, Colorado, which included a Notice of Rights that was identical to the one Plaintiffs received in 2011, giving her 180 days to submit a disagreement. [8-4] at pp. 14-15.

         In November 2015, Ms. Holmes filed an appeal of the VA's decision to lower the Tier level, which appeal was denied on December 15, 2015. [2] at IV. C.; [8-3] at pp. 11-26; [8-4] at p. 17. In the December 2015 notification letter, Ms. Holmes was advised:

You may elect to have this appeal sent to the Veterans' Integrated Service Network (VISN) 16 Director. A clinical appeal is your formal request to have the VISN Director or designee review your dispute. Your disagreement regarding your clinical eligibility denial must be submitted in writing within 10 days of the receipt of this notice.

[8-4] at p. 17. Plaintiffs claim that the decisionmakers implemented their own flawed appeal criteria, manipulating, modifying, and implementing it as they went along. [2] at IV.C. Plaintiffs allege the modified appellate criteria was strategically designed by the CSP coordinators to be disadvantageous for Plaintiffs, and that in an effort to humiliate Ms. Holmes, the ...


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