IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

WILLIAM R ALTEMUS, : Plaintiff, : v. : Civ. No. 14-715-LPS U.S. DEPARTMENT OF VETERANS : AFFAIRS, : Defendant. :

William R. Altemus, Millsboro, Delaware, Pro Se Plaintiff. David C. Weiss, U.S. Attorney, and Shamoor Anis, Assistant U.S. Attorney, Wilmington, Delaware, Counsel for Defendant.

MEMORANDUM OPINION

January 12, 2022 Wilmington, Delaware

7 | fo □□□ i U.S. District Judge: I. INTRODUCTION Plainuff William R. Altemus (“Plainuff”), who proceeds pro se, commenced this action on June 6, 2014. He filed an Amended Complaint on March 2, 2021. (D.I. 54) Before the Court is Defendant’s motion to dismiss and Plaintiffs motion for summary judgment. (D.I. 55, 59) II. BACKGROUND Plainuff, a U.S. Air Force veteran, has sought and received medical and disability benefits from the Department of Veterans Affairs (“VA”). The original complaint raised the following claims: (1) Plainuff was treated unfairly and unlawfully in connection with his application for increased disability benefits; (2) medical malpractice; (3) defamation; (4) violations of constitutional rights; and (5) violations of the Freedom of Information and/or Privacy Act (“FOLA/PA”), 5 U.S.C. 552 and 552a. On November 5, 2015, Plaintiff filed a motion to withdraw his complaint, construed by the Court as a motion to voluntarily dismiss the complaint. (D.I. 40, 42) The case was closed on November 16, 2015. (D.I. 42) On Apnil 27, 2020, Plaintiff filed a motion to reopen the case, the case was reopened, and Plaintuff filed an Amended Complaint on March 2, 2021. (D.I. 43, 53, 54) The Amended Complaint seeks to obtain evidentiary documents, including all electronic documents, from the VA not provided for 2012 to 2021 and “reconfirms there is no request for court involvement regarding benefit award.’ (D.I. 54 at 3) Defendant moves for dismissal pursuant to Fed R. Civ. P. 12(b)(6) on the grounds that Plaintiff never submitted his FOIA request to the VA and failed to exhaust his administrative

“The Amended Complaint states that in December 2017 Plaintiff successfully obtained 100 percent total disability without any new evidence. (D.I. 54 at 2)

remedies prior to filing suit. (D.1. 55 at 1) When Plaintiff failed to file a response to the motion, he was ordered to show cause why the case should not be dismissed for failure to prosecute. (D.I. 56) Plaintiff filed a response and a week later filed a motion for summary judgment.” (D.I. 57, 59) Defendant opposes the motion. (D.I. 60) II. LEGAL STANDARDS Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis,

(3d Cir. 2004). “The issue 1s not whether a plaintiff will ulumately prevail but whether the claimant is entitled to offer evidence to support the claims.” In re Burlington Coat Factory Sec. Latig.,

(3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after ““accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plainuff is not entitled to relief.” Mazo v. Aetna, Inc.,

, 481-82 (3d Cir. 2000) (internal quotation marks omitted). A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 USS. 662, 678 (2009); Bed/_Atl. Corp. v. Twombly, 550 US. 544, 555 (2007). A plainuff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby,

(2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id at 10. “In evaluating a motion to dismiss,” the Court “may consider documents that are attached to or submitted with the complaint . . . ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public

* The Court finds Plaintiff has shown cause why the case should not be dismissed.

record, orders, [and] items appearing 1n the record of the case.” Buck v. Hampton Twp. Sch. Dist.,

(3d Cir. 2006). “To survive a motion to dismiss, a civil plainuff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).”” Victaulhe Co. v. Tieman,

(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). A claim is facially plausible “when the plainuff pleads factual content that allows the court to draw the reasonable inference that the defendant is lable for the misconduct alleged.” 556 U.S. at 678. At bottom, “[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of a plainuff’s claim. Wilkerson v. New Media Tech. Charter Sch. Inc.,

(3d Cir. 2008) (internal quotation marks omitted). The Court is not obligated to accept as true “bald assertions,” Morse v. Lower Merion Sch. Dist.,

(3d Cir. 1997) (internal quotation marks omitted), “unsupported conclusions and unwarranted inferences,” Schuy/kill Energy Res., Inc. v. Pennsylvania Power Light Co.,

(3d Cir. 1997), or allegations that are “self-evidently false,” Nam v. Fauver,

(3d Cir. 1996). Because Plaintiff proceeds prv se, his pleading 1s liberally construed and his Amended Complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

(2007) (internal quotation marks omitted). IV. DISCUSSION A. Motion to Dismiss Defendant seeks dismissal on the grounds that the Amended Complaint contains no legal claims and, instead, requests documents and, therefore, is governed by the Freedom of Information

Act (“FOIA”). (D.I. 55) Defendant argues that Plaintiff never submitted a FOLA request to the VA and did not exhaust his administrative remedies prior to filing suit. To the extent Plaintiff raises a FOLA claim, the claim fails as pled. “[T]he FOLIA requires exhaustion of the administrative appeals process before an individual may seek relief in the district court.” Conley v. Fed. Bureau of Investigation, 714 PF. App’x 191, 194 (3d Cir. 2017) (quoting McDonnell v. United States,

(3d Cir. 1993)). The Amended Complaint alleges that Plaintiff's attempts to resolve issues “administratively failed” but does not provide facts to explain this statement. (D.I. 54 at 1) In Plaintiff's response to the show cause order, he states that he “pursued significant efforts for administrative resolve over the years.” (D.I. 57 at 3) He also provides a copy of a complaint that refers to his numerous FOLA requests, but the list of FOIA requests is not included in the Amended. Complaint. (See D.I. 57 at Ex. 2) As pled, the Amended Complaint does not specifically identify the FOLA requests made by Plaintiff or whether he exhausted administrative remedies as to each request. Therefore, Defendant’s motion to dismiss will be granted. (D.I. 55) Plaintiff will be given leave to file a second amended complaint to cure his pleading defects. B. Motion for Summary Judgment Plaintiffs motion for summary judgment is premature. (D.I. 59) A scheduling order has not been entered and discovery has not yet commenced. Therefore, the motion will be denied without prejudice as premature. V. CONCLUSION For the above reasons, the Court: (1) finds that Plainnff has shown cause why the case should not be dismissed; (2) will grant Defendant’s motion to dismiss (D.I. 55); (3) will give Plaintiff

leave to file a second amended complaint; and (4) will deny without prejudice as premature Plaintiffs motion for summary judgment (D.I. 59). An appropriate Order will be entered.