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Paige v. Department of Veterans Affairs

United States District Court, N.D. Indiana, Fort Wayne Division

July 27, 2017

JENA K. PAIGE, Plaintiff,



         This matter is before the Court on the motion to dismiss (and memorandum in support) filed by the Defendants on April 28, 2017 (ECF 5 and 6). Plaintiff Jena Paige, proceeding pro se, filed a response in opposition to the motion on May 3, 2017 (ECF 10) and the Defendants filed a reply on May 8, 2017 (ECF 14). On May 10, Paige filed what she titled a “motion for judgment as a matter of law as prescribed in federal rules of civil procedures Rule 50(2)” (ECF 16). For the reasons discussed below, the Defendants' motion to dismiss (ECF 5) is GRANTED and this case is DISMISSED WITH PREJUDICE. The Plaintiff's motion for judgment as a matter of law (ECF 16) is DENIED AS MOOT. Plaintiff Jena K. Paige is hereby ENJOINED AND BARRED FROM FILING any case in this District against any of the three named Defendants in which she attempts to re-litigate the matters presented in this lawsuit. If Plaintiff persists in filing frivolous cases in this District she will be subject to more serious sanctions, including monetary sanctions and harsher filing restrictions. The Clerk of the Court is instructed to distribute a copy of this opinion and order to all the judges in this District.


         When determining whether to dismiss complaint under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 648 (7th Cir. 2017). But while a pro se plaintiff is held to “less stringent standards than formal pleadings drafted by lawyers, ” she still “can plead [herself] out of court.” Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999); McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

         The Seventh Circuit recently reaffirmed that “district courts ordinarily should not dismiss a complaint based on an affirmative defense such as res judicata. . . . But when it is ‘clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law, ' dismissal is appropriate.” Parungao v. Cmty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017) (citations and footnote omitted). As another district court explained:

[R]es judicata “is [usually] not one of the affirmative defenses that Rule 12(b) permits . . .; rather, res judicata is an affirmative defense which should be raised in a motion for judgment on the pleadings under Rule 12(c).” U.S. Bank, Nat'l Ass'n v. JKM Mundelein LLC, 2015 WL 2259474, at *2 (N.D. Ill. May 12, 2015). That said, depending upon the allegations raised and the content of the public records subject to judicial notice, “res judicata may provide grounds for dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.” Id.; see also Clark & Leland Condo., LLC v. Northside Cmty. Bank, 110 F.Supp.3d 866, 868-69 (N.D. Ill. 2015), on reconsideration in part sub nom. 2016 WL 302102 (N.D. Ill. Jan. 25, 2016) (“res judicata is an affirmative defense [however] the doctrine of res judicata may properly be raised as a basis to dismiss a complaint pursuant to Rule 12(b)(6)”).

Mac Naughton v. Alden Mgmt. Servs., Inc., 2017 WL 1208579, at *2 (N.D. Ill. Apr. 3, 2017).

         In their motion to dismiss, the Defendants also present other grounds for dismissal, including arguing that this Court lacks derivative jurisdiction over Paige's claims and so the case must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1); that the Defendants are entitled to sovereign immunity; and that Paige failed to exhaust her administrative remedies. Defendants' Memorandum in Support, generally. These are valid bases for dismissal of this case also, although this Court will focus its discussion on the issues of res judicata and maliciousness, which the Court concludes are the preeminent bases for dismissal for the reasons discussed below.


         Plaintiff Jena Paige filed this lawsuit against the Department of Veterans Affairs, the U.S. Air Force, and the U.S. Civil Rights Commission in state court on March 28, 2017 (ECF 4).[1] The Defendants removed the suit to this Court on April 21, 2017, “pursuant to 28 U.S.C. § 1442 because it is [a suit] against an agency of the United States.” Notice of Removal (ECF 2), p. 2. Paige's Complaint is 28 pages long and is accompanied by a 56-page exhibit that includes medical records, letters and other communications, and several documents that appear to be pages printed from websites (and which discuss various medical conditions). The Complaint, like many pro se complaints, is rambling and disjointed and Paige's claims are difficult to discern. That said, there doesn't appear to be any dispute about the essence of those claims or the facts giving rise to them. Since the Defendants' arguments in support of dismissal are well taken, there is no need to recount the underlying facts in great detail. The gist of the matter is this. Paige served in “the U.S. Air Force as a Military Police Officer from Feb[ruary] 2001 [until] June 2006.” Complaint, p. 6. Paige states that on March 7, 2002, she was injured when she slipped on ice during weapons qualification training. Id. Paige was subsequently diagnosed with “[d]ebilitating peripheral neuropathy of unknown etiology.” Complaint, Exh. A (ECF 4-1), p. 2. On May 13, 2003, Paige was examined again by Air Force physicians who concluded that she was “unfit” for military duty due to the severity of her neuropathy. Id., p. 4. Paige was discharged from the Air Force as a result of her medical condition and received a disability pension thereafter from the VA. Id., pp. 23-24. In June of 2011, the VA determined that Paige's disability payment should be reduced since the agency's review of her medical records indicated improvement in her condition-a determination that Paige challenged vehemently. Id., p. 33 (VA benefits determination letter); pp. 34-36 (Paige response challenging determination).

         Skipping forward many years to the filing of this suit, Paige is attempting to continue her battle with the VA over the amount of her disability benefits, and in addition seeks damages from the Air Force for alleged unlawful employment practices related to her discharge and from the Commission on Civil Rights for allegedly not investigating those unlawful practices. Complaint, pp. 11-13. Paige includes a section near the end of her Complaint titled “Summary of Complaint, ” which states in part as follows:

(a) I Jena K. Paige has filed a complaint of my substantial civil rights being deprived that certain agencies that had a duty to prevent did not that was due to the unlawfulness of the agencies being the Civil Rights Commission, and/or that which would be consider fraud, waste, and abusive with the DOD to review my military record when such action were that which violated my substantial rights under the laws, and constitution.
(b) When in truth of what is lawful that has been stated in I Jena K Paige's Complaint, and the material facts of both law and evidence that clearly shows and proves that I suffers of personal injury presently, and too suffered from personal injuries from the actions of the defendants in respect to my employment, and discharged from the military that were obstructional towards justice of my substantial civil rights, and constitutional rights of my civil liberties under both the constitution and laws of the interest of Justice that is of the interest of Justice.
(c) I Jena K Paige has suffered, and has to live of the personal injuries of being homeless, financial distress, the lack of adequate means of finances, compensations, and entitlement to support myself and the disability that I suffer from, that is made to live in double jeopardy of my civil liberties of my civil freedom ...

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