Dionne v. Shulkin et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Dionne
v. Civil No. 17-cv-142-PB
United States Department of
Veterans Affairs et al.1
REPORT AND RECOMMENDATION
Pro se plaintiff, Paul Dionne, has filed a complaint in
this action (Doc. No. 1). The matter is before the court for
preliminary review, pursuant to LR 4.3(d) and 28 U.S.C.
§ 1915(e)(2).
Standard
The magistrate judge conducts a preliminary review of
complaints filed pro se and in forma pauperis. The magistrate
judge may recommend to the district judge that one or more
claims be dismissed if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
1Plaintiff has named the following defendants to this
action: United States Department of Veterans Affairs (“VA”)
Secretary David J. Shulkin; Ann Brown, Director, VA Greater Los
Angeles Healthcare System; and Christine Pons, Chief of
Communications, VA Greater Los Angeles Healthcare System. The
court construes the complaint as intending to name the VA itself
as an additional defendant, regarding the claim plaintiff has
asserted under the Freedom of Information Act.
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granted. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). In
conducting its preliminary review, the court construes pro se
complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). The complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted).
Background
Plaintiff alleges that he is a member of the press
preparing an exposé regarding the VA Greater Los Angeles
Healthcare System (“VAGLAHS”) West Los Angeles Medical Center.
Plaintiff asserts that he attempted to record videos at that
facility related to his exposé, and that he sought to obtain
access to information about VAGLAHS that could result in his
receiving compensation.
Plaintiff states that defendant Christine Pons, VAGLAHS
Chief of Communications, denied plaintiff access to VAGLAHS’s
West Los Angeles campus to record videos in August 2016 and on
specific dates in April 2017. Further, VAGLAHS Director Ann
Brown and Pons, working together, scheduled a public information
session conflicting with dates in April 2017 that plaintiff had
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proposed for video production. Plaintiff alleges that the
scheduling of that event was undertaken to interfere with his
plan to take videos and obtain compensation for his report and
videos. Additionally, plaintiff claims that the VA failed to
respond to a Freedom of Information Act (“FOIA”) request that
Dionne mailed to Pons in February 2017.
Discussion
I. RICO Claims
Plaintiff asserts claims of violations of the Racketeer
Influenced Corrupt Organizations Act (“RICO”). RICO “makes it
criminal ‘to conduct’ an ‘enterprise’s affairs through a pattern
of racketeering activity,’ 18 U.S.C. § 1962(c), defined as
behavior that violates certain . . . enumerated federal statutes
or state laws addressing specified topics and bearing specified
penalties.” Rotella v. Wood, 528 U.S. 549, 552 (2000). A
“pattern” of racketeering requires at least two predicate acts.
Id. (citing 18 U.S.C. § 1961(5)). The prohibited acts of
racketeering include, among other conduct, witness tampering and
retaliation, mail and wire fraud, and extortion. See 18 U.S.C.
§ 1961(1).
Any person who is “injured in his business or property” by
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a RICO violation may bring a civil action for treble damages and
attorney fees. 18 U.S.C. § 1964(c). A RICO plaintiff must show
that a predicate act of racketeering caused the complained-of
injuries. See Beck v. Prupis, 529 U.S. 494, 504-07 (2000). The
predicate act must be the proximate cause of those injuries, not
only the cause-in-fact. Holmes v. Sec. Investor Prot. Corp.,
503 U.S. 258, 268 (1992); Kaiser Found. Health Plan, Inc. v.
Pfizer, Inc. (In re Neurontin Mktg. & Sales Prac. Litig.), 712
F.3d 21, 34-40 (1st Cir. 2013).
Plaintiff has failed to plead facts to state a claim that
defendants engaged in any acts of racketeering that proximately
caused him injury. Plaintiff has thus failed to state a claim
under RICO upon which relief can be granted. Accordingly,
plaintiff’s RICO claims should be dismissed from this action.
II. Fourteenth Amendment Claims under 42 U.S.C. § 1983
Plaintiff asserts claims alleging violations of his
Fourteenth Amendment rights, under 42 U.S.C. § 1983. Section
1983 provides for a cause of action for a plaintiff who alleges
that his constitutional rights were violated by state actors.
Plaintiff names only federal defendants, who are not alleged to
have taken any action under color of “state” law. Accordingly,
the plaintiff’s claims of violations of the Fourteenth
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Amendment, arising under section 1983, should be dismissed, for
failure to state a claim upon which relief can be granted.
III. Claims for Damages against Supervisors
Plaintiff alleges that VAGLAHS Director Ann Brown and VA
Secretary David J. Shulkin are liable to him based on Pons’s
acts. Plaintiff alleges that Pons, “operating at the direction
of Brown,” prevented him from obtaining videos to substantiate
his story, which he could have sold to the national media.
Without issuing any opinion at this stage of the case
regarding whether a claim for damages against an individual
federal employee in her personal capacity may be based on that
employee’s alleged violation of a plaintiff’s First Amendment
rights, cf. Casey v. Dep’t of Health & Human Servs., 807 F.3d
395, 401 (1st Cir. 2015) (noting lack of Supreme Court and First
Circuit cases extending Bivens remedy to encompass First
Amendment claims (Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971))), the district judge should dismiss the
claims at issue to the extent they are asserted against Shulkin
in his individual capacity. “Because vicarious liability is
inapplicable to Bivens . . . suits, a plaintiff must plead that
each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556
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U.S. at 676. In general, supervisory liability in such cases
lies only where “an affirmative link between the behavior of a
subordinate and the action or inaction of his supervisor exists
such that the supervisor’s conduct led inexorably to the
constitutional violation.” Maldonado v. Fontanes, 568 F.3d 263,
275 (1st Cir. 2009) (internal quotation marks and citation
omitted). While Dionne alleges facts regarding Brown directing
Pons, stripped of legal conclusions, the complaint does not
allege any similar facts regarding Shulkin to state a claim that
Shulkin’s own acts or omissions led inexorably to a violation of
plaintiff’s rights under the First Amendment. Accordingly, the
claims for damages against Shulkin should be dismissed, and he
should be dropped as a defendant from this case.
IV. Remaining Claims
In an Order issued this date, the court directs service of
this matter on defendants Pons, Brown, and the VA, without
prejudice to defendants’ ability to move to dismiss those claims
on any valid basis.
Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiff’s claims under RICO, the Fourteenth Amendment,
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and 42 U.S.C. § 1983, and drop defendant Shulkin from this case.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The fourteen day period may be extended upon
motion. Failure to file objections within the specified time
waives the right to appeal the district court’s order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 2, 2017
cc: Paul Dionne, pro se
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