Mykobi L’bert v. William Montague

* The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0377n.06
Filed: May 11, 2005
No. 02-4149
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MYKOBI L’BERT,
Plaintiff-Appellant,
v.
WILLIAM MONTAGUE, et al.,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OHIO
O R D E R
BEFORE: KEITH, CLAY, and FARRIS*
PER CURIAM. The district court dismissed Plaintiff Mykobi L’Bert’s tort lawsuit against
Defendants William Montague, Robert Goldberg, Daniel Tilman, Charles Franks, Patricia Gheen,
Brenda McCombs, and Theresa O’Malley, officials at the Ohio hospital where L’Bert worked, for
failure to exhaust administrative remedies. 28 U.S.C. § 2675(a). The hospital is administered by
the Department of Veterans Affairs (VA). L’Bert originally brought this lawsuit in state court; the
defendants removed the case to federal district court upon certification by the Attorney General that
the defendants were acting within the scope of their employment at the VA. See 28 U.S.C. §
2679(d)(1). The district court accordingly accepted the case and substituted the United States as
Defendant. See id.

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No. 02-4149
1 R. James Nicholson is substituted for his predecessor, Anthony Principi, pursuant to
Fed. R. App. P. 43(c)(2).
2
The district court also dismissed another lawsuit brought by L’Bert, this one against
Defendant R. James Nicholson, the Secretary of the VA,1 see 42 U.S.C. § 2000e-16(c), involving
claims of discriminatory and retaliatory discharge in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., on the grounds that the Title VII claims are barred by res
judicata. These claims were raised and fully litigated in a lawsuit L’Bert brought in 1999; in that
case, the district court granted summary judgment to the defendants and this Court affirmed. L’Bert
v. West, 2001 WL 1450734 (6th Cir. Oct. 30, 2001) (unpublished order). L’Bert appeals the
substitution of the United States as Defendant in the tort lawsuit and the dismissal of the tort and
Title VII lawsuits.
We have carefully reviewed the record supplied to us on appeal, the parties’ briefs, and the
decision below. Because the district court (Oliver, J.) fully addressed L’Bert’s claims and correctly
disposed of them in a thorough written opinion, we conclude that the issuance of an opinion by this
Court would be duplicative and serve no useful purpose. We therefore affirm on the basis of the
district court’s opinion.

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