UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul A. Duarte

v. Civil No. 06-cv-107-SM

United States Department of

Veterans’ Affairs, et al.

O R D E R

Pro se plaintiff Paul A. Duarte has filed suit against the

United States Department of Veterans’ Affairs pursuant to 38

U.S.C. § 1151, alleging that he is entitled to compensation for

injuries sustained by improper treatment provided by a Veterans’

Administration nurse practitioner. Because Duarte is proceeding

pro se, his complaint is before me for preliminary review to

determine whether this court’s subject matter jurisdiction has

been invoked. See United States District Court for the District

of New Hampshire Local Rule 4.3(d)(1)(A). 

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally. See Ayala Serrano v. Lebron Gonzales,

909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v. Gamble, 429

U.S. 97, 106 (1976) to construe pro se pleadings liberally in

Case 1:06-cv-00107-SM Document 2 Filed 06/21/06 Page 1 of 5
2

favor of the pro se party). “The policy behind affording pro se

plaintiffs liberal interpretation is that if they present

sufficient facts, the court may intuit the correct cause of

action, even if it was imperfectly pled.” Ahmed v. Rosenblatt,

118 F.3d 886, 890 (1st Cir. 1997), cert. denied, Ahmed v.

Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988). I apply this standard in reviewing

Duarte’s complaint. 

Background

Paul Duarte alleges that on March 23, 2004, he was treated

by Timothy Cox, a nurse practitioner, at a Veterans’

Administration hospital in White River Junction, Vermont. Duarte

alleges that Cox negligently engaged in physical manipulations of

Case 1:06-cv-00107-SM Document 2 Filed 06/21/06 Page 2 of 5
3

Cox’s body that injured Duarte, despite being advised of Duarte’s

medical conditions and physical limitations. Cox alleges that he

has filed a “Notice of Intent” for this action with the Veterans’

Administration Regional Office. 

Duarte originally filed this action on March 22, 2006. At

the time he filed his complaint, Duarte advised the Clerk’s

Office that he would send in summonses the same week. Duarte

then called back and requested until April 22, 2006 to return his

summonses for processing. On April 24, 2006, Duarte requested

until May 30, 2006 to send in his service documents for

processing. As of the date of this Order, no service documents

have been filed for processing, and therefore service documents

have not been issued by the Clerk’s Office or served on any

defendant to this action.

Discussion

I. Subject Matter Jurisdiction

Federal Courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). The

presumption is that a federal court lacks jurisdiction. Id.

Consequently, the burden is on the plaintiff who claims

jurisdiction to affirmatively allege jurisdiction and prove it. 

Case 1:06-cv-00107-SM Document 2 Filed 06/21/06 Page 3 of 5
1Fed. R. Civ. P. 4(m) states:

[T]he court, upon motion or on its own initiative 

after notice to the plaintiff, shall dismiss the 

action without prejudice as to that defendant or 

direct that service be effected within a specified 

4

Id.; see also Bender v. Williamsport Sch. Dist, 475 U.S. 534, 541

(1986). To bring a civil action within the court’s subject

matter jurisdiction, a plaintiff must allege that his action

either involves a federal question, or involves citizens from

different states and an amount in controversy in excess of

$75,000. See 28 U.S.C. §§ 1331 & 1332. If it appears that the

courts lacks subject matter jurisdiction over the matter, the

court is required to dismiss the action. Fed. R. Civ. P.

12(h)(3). By filing suit under the provisions of 38 U.S.C. §

1151, Duarte invokes the federal question jurisdiction of this

court. See 28 U.S.C. §1331 (authorizing District Court

jurisdiction over “civil actions arising under the Constitution,

laws, or treaties of the United States.”) 

II. Service 

Plaintiffs are required to serve a summons and a copy of the

complaint upon a defendant to a civil action within 120 days of

the date the complaint was filed or else the court may dismiss

the case for failure to prosecute. Fed. R. Civ. P. 4(m).1 As of

Case 1:06-cv-00107-SM Document 2 Filed 06/21/06 Page 4 of 5
time; provided that if the plaintiff shows good 

cause for the failure, the court shall extend the 

time for service for an appropriate period.

5

June 21, 2006, ninety (90) days after the complaint in this case

was filed, the plaintiff has filed neither his summonses for

processing nor any certificate of service indicating that he has

served any defendant with a copy of the complaint. In accordance

with Federal Rule of Civil Procedure 4(m), Duarte is hereby

notified that this case may be dismissed without prejudice on

July 22, 2006, if no return of service documents or motion to

extend time to effect service is not received by that date. 

SO ORDERED.

 

James R. Muirhead 

 United States Magistrate Judge

Date: June 21, 2006

 

cc: Paul A. Duarte, pro se

Case 1:06-cv-00107-SM Document 2 Filed 06/21/06 Page 5 of 5