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John F. Chagnon v. United States Department of Veterans

January 31, 2012

JOHN F. CHAGNON
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, SECRETARY ERIC K. SHINSEKI



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

EXHIBIT A

REPORT AND RECOMMENDATION

Pro se plaintiff, John Chagnon, has filed a complaint (doc. no. 1) asserting that defendant, United States Department of Veterans Affairs ("VA") Secretary Eric Shinseki and certain VA employees and officials, including Abner Concepcion, Manager of the Boston Veterans Affairs Regional Office ("VARO"), have treated Chagnon negligently and abusively, in connection with the processing and denial of Chagnon's veterans benefits claim for Post-Traumatic Stress Disorder ("PTSD"), and in causing Chagnon's supplemental security income ("SSI") disability payments to be reduced in 2010 and 2011. Because Chagnon is proceeding pro se and in forma pauperis, the matter is before the court for preliminary review. See 28 U.S.C. § 1915(e); United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(1)(B).*fn1

Standard of Review

Under LR 4.3(d)(1)(B), when an in forma pauperis plaintiff commences an action pro se, the magistrate judge conducts a preliminary review. The magistrate judge may issue a report and recommendation after the initial review, recommending that claims be dismissed if the court lacks subject matter jurisdiction, the defendant is immune from the relief sought, the complaint fails to state a claim upon which relief may be granted, the allegation of poverty is untrue, or the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1)(B).

In conducting a preliminary review, the magistrate judge construes pro se pleadings liberally, to avoid inappropriately stringent rules and unnecessary dismissals. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to construe pleadings liberally in favor of pro se party); Castro v. United States, 540 U.S. 375, 381 (2003).

To determine if the complaint states any claim upon which relief could be granted, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009).

To make this determination, the court employs a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The court first screens the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id. (citations, internal quotation marks and alterations omitted). A claim consisting of little more than "allegations that merely parrot the elements of the cause of action" may be dismissed. Id. The second part of the test requires the court to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then to determine if the claim is plausible. Id. The plausibility requirement "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of illegal conduct. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The "make-or-break standard" is that those allegations and inferences, taken as true, "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555-56 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (internal citations and footnote omitted)).

Evaluating the plausibility of a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at ___, 129 S. Ct. at 1950 (citation omitted). In doing so, the court may not disregard properly pleaded factual allegations or "attempt to forecast a plaintiff's likelihood of success on the merits." Ocasio-Hernandez, 640 F.3d at 13. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Id.

Background

Chagnon is a Vietnam-era veteran. During his military service, Chagnon served as a counselor to Marines returning to the United States in 1962 and 1963. Chagnon asserts that he suffered a service-related disability, PTSD, at that time.

Chagnon asserts that from 1971 to 2011, individuals associated with the VA in New Hampshire, Boston, Florida, Virginia, and Vermont destroyed or withheld relevant records from Chagnon; failed to respond to Chagnon's complaints and requests for information; and failed to publish pertinent rules regarding claims for PTSD benefits. Chagnon asserts that, from 1988 through October 5, 2009, Boston VARO managers, including defendant Concepcion, destroyed or withheld certain medical and service records from Chagnon so that Chagnon's benefits claim would be denied.

Chagnon claims that Concepcion: (a) failed to respond to Chagnon's emails, phone calls, and letters of complaint; (b) appointed an "unprofessional" VA doctor to deny Chagnon's PTSD claim; (c) failed to publish and follow pertinent VA rules; and (d) failed to process Chagnon's claim expeditiously, as directed by the Board of Veterans' Appeals ("BVA"). Chagnon has also specifically asserted that between September 2010 and May 2011, defendant Concepcion put in place a plan to take away a portion of Chagnon's SSI benefits which caused Chagnon's monthly SSI payment to drop from $902 per month to $766 per month from January through May 2011. Chagnon asserts that the reason Concepcion failed to follow VA rules was that he was not properly supervised.

At some point, Chagnon filed a claim for veteran's benefits for his PTSD. After the Boston VARO denied Chagnon's claim, Chagnon filed an appeal with the BVA. The BVA remanded the matter in August 2010, directing the VARO on remand to obtain a medical opinion regarding Chagnon's PTSD and its service connection, and further directed that the matter be processed expeditiously.

In response to that remand, Concepcion arranged for Chagnon to be examined by Dr. Harland, a VA physician. The VARO denied the claim again, based on Dr. Harland's report, and the matter was recertified to the BVA. Chagnon asserts in the motion for a preliminary injunction (doc. no. 3) that Dr. Harland's examination of ...


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