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Veasey v. United States

United States District Court, E.D. Pennsylvania

February 9, 2017

FRANCIS EDWARD VEASY Petitioner,
v.
UNITED STATES OF AMERICA; CAROL ROANE, Assistant Director, Philadelphia VAROIC; MICHAEL SHAPIRO, M.D., Hospital Administrator; DR. GUYLAI, M.D., Psy. Behavioral Restrictions Committee Chairman; TIMONTHY KELLY, Patient Advocate, VAMC/VAROIC; JEFFREY KAUFMAN, Chief, VA Police Dept.; LISA CATES, Captain, VA Police Dept.; Respondents.

          MEMORANDUM

          Gerald Austin McHugh United States District Judge

         I. BACKGROUND

         Petitioner Francis Edward Veasy is a retired U.S. Army veteran who receives medical care at the Corporal Michael J. Crescenz Medical Center in Philadelphia (Crescenz Medical Center). In response to a March 12, 2015 incident involving Petitioner and one of his doctors, the Disruptive Behavior Committee at the Crescenz Medical Center imposed on Petitioner an Order of Behavioral Restriction (OBR).[1] The OBR-which was dated March 18, 2015 and which remains in effect[2]-requires that Petitioner check in with security personnel when he arrives at the Crescenz Medical Center for non-emergency treatment, and that he be accompanied by a police escort when moving through the facility.

         Through a series of letters, Petitioner notified the Veterans Administration (VA) of his objections to the OBR. The VA took no action in response to these letters and Petitioner now seeks a writ of mandamus to compel the VA to hold a hearing where he can formally contest his OBR. Before me is the government's Motion for Summary Judgment. For the reasons detailed below, this motion is granted and Petitioner's claim is dismissed.

         II. STANDARD

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On such a motion, “‘[a]ll reasonable inferences from the record must be drawn in favor of the nonmoving party' and the court ‘may not weigh the evidence or assess credibility.'” Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016) (alteration in original) (citation omitted). But if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” there is no genuine issue of any material fact and the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         III. DISCUSSION

         Petitioner brings this action pursuant to the Mandamus Act, 28 U.S.C. § 1361, which provides that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

         Petitioner is entitled to relief under the Mandamus Act “only if he has exhausted all other avenues of relief and only if the defendant owes him a clear, nondiscretionary duty.” Harmon Cove Condo. Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Furthermore, the nondiscretionary duty in question must be “a specific, plain ministerial act devoid of the exercise of judgment or discretion. An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.” Id.

         Because Petitioner has failed to exhaust his administrative remedies, and because the government has no “clear, non-discretionary duty” to conduct the hearing he seeks, his action under the Mandamus Act fails.

         A. Failure to Exhaust Administrative Remedies and Lack of Ministerial Duty

         The regulations governing the issuance of an OBR are set forth at 38 C.F.R. § 17.107. That section allows the VA to restrict the “time, place, and/or manner” of medical care that it provides to patients whose disruptive behavior “could jeopardize the health or safety of other patients, VA staff, or guests . . ., or otherwise interfere with the delivery of safe medical care to another patient at the facility.” § 17.107(b). The regulations expressly permit several restrictive measures, including “requiring police escort, ” so long as those restrictions are “narrowly tailored to address the patient's disruptive behavior and avoid undue interference with the patient's care.” Id. Of particular relevance to this case, § 17.107(e) allows a patient to “request . . . review of any order issued under this section within 30 days of the effective date of the order by submitting a written request to the Chief of Staff.”

         Petitioner was clearly apprised of his right to request review and of the procedures for exercising that right. During a meeting at the Cresncenz Medical Center on March 20, 2015, Petitioner received a three-page letter notifying him of the OBR and explaining that it was imposed. That letter advised Petitioner that:

If you wish to appeal these restrictions, you have 30 days from the date of this letter to do so. You may appeal by sending a ...

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