counts one and two are dismissed for lack of subject matter jurisdiction.
As to constitutional counts three and four, these counts merely re-allege in constitutional language claims raised elsewhere in the complaint. As in Deloria v. Veterans Administration, plaintiff "struggles to elevate a commonplace tort violation into a constitutional challenge." Deloria v. Veterans Admin., 927 F.2d 1009, 1013 (7th Cir. 1991). Plaintiff cannot circumvent either § 511(a) or the exhaustion requirement of the FTCA by making sweeping, unsubstantiated allegations of unconstitutionality. See id. Accordingly, counts three and four are also dismissed for lack of subject matter jurisdiction.
Preliminary Injunction Request
Plaintiff's preliminary injunction involves matters outside the scope of his complaint -- two incidents in 1992 when plaintiff experienced medical difficulties. He seeks an order mandating defendant to provide him with care at the private doctor of his choice and an injunction barring defendant from preventing plaintiff from receiving emergency treatment. The Court is clearly barred by § 511 (a) from issuing such an order. See 38 U.S.C. § 511(a).
Therefore, the motion is denied and the claims therein are dismissed for lack of subject matter jurisdiction.
Accordingly, for the reasons stated above, it hereby is
ORDERED, that plaintiff's case is dismissed for lack of subject matter jurisdiction as to the FTCA counts one, two, three, four, five, eight, nine, ten, and eleven, and constitutional counts one, two, three, and four. It hereby further is
ORDERED, that plaintiff's motion for a preliminary injunction is denied. It hereby further is
ORDERED, that the claims raised in plaintiff's motion for a preliminary injunction are dismissed for lack of subject matter jurisdiction. It hereby further is
ORDERED, that the case, which has only the FTCA counts six and seven remaining, is transferred to the Waco Division of the United States District Court for the Western District of Texas.
Stanley S. Harris
United States District Judge
Date: OCT 26 1992