1 2 3 4 5 6 7 10 11 MARK A. CROZIER, Case No. 1:24-cv-00255-BAM 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 VALLEY HEALTH TEAM, INC., et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 Plaintiff Mark A. Crozier (“Plaintiff”), proceeding pro se and in forma pauperis, initiated 18 this civil action on February 29, 2024. (Doc. 1.) On May 5, 2024, the Court screened Plaintiff’s 19 complaint and granted him leave to amend. (Doc. 4.) Plaintiff filed a first amended complaint on 20 May 28, 2024. (Doc. 5.) On July 7, 2024, the Court screened Plaintiff’s first amended complaint 21 and granted him leave to file a second amended complaint. (Doc. 6.) Plaintiff’s second amended 22 complaint, filed on August 29, 2024, is currently before the Court for screening. (Doc. 11.) 23 I. Screening Requirement and Standard 24 The Court screens complaints brought by persons proceeding in pro se and in forma 25 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 26 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 27 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 28 U.S.C. § 1915(e)(2)(B)(ii). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Summary of Plaintiff’s Allegations 15 Plaintiff drafted his second amended complaint (“SAC”) using a complaint form. The 16 form names the United States of America, Valley Health Team, and Michell Gallean1 as 17 defendants. Plaintiff identifies the basis of this Court’s jurisdiction as federal question. He 18 alleges that Valley Health Team is a federally qualified health center covered by the Federal Tort 19 Claims Act (“FTCA”), and that Michelle Gallean is an employee of Defendant Valley Health 20 Team. Plaintiff therefore invokes 28 U.S.C. §§ 1346(b) and 2401(b). (Doc. 11 at 3, 4.) In the 21 section in which he is asked to indicate the federal constitutional or federal statutory rights he 22 believes are at issue in this case, he again identifies the FTCA. (Id. at 4.) 23 Plaintiff asserts that he sent a written letter to the United States “Department of Health of 24 final denial claim,” pursuant to 28 C.F.R. § 14.9(b). (Doc. 11 at 4.) In the statement of claim, 25 Plaintiff alleges as follows:
26 Date 09/24/2019 [¶] Michell Galean DDS negligently provided dental services resulting [in] pain, eating, hot or cold. 6 to 7 month I find Michelle had drilled 27
28 1 The SAC also identifies defendant Gallean as “Galean.” (Doc. 11 at 4, 5.) 1 additional very small hole next to my other tooth she drilled then patched. As soon as numbing shot wore off I was in pain. [Valley] Health is federally funded 2 health center. That what makes United States of America a defendant in this case. [Causing] me harm and violating my right. 3 (Id. at 5.) As relief, Plaintiff seeks “monetary damage for pain and suffering future medical for 4 repairs and other economic damages subject to proof.” (Id. at 6.) He seeks actual damages 5 determined according to proof. (Id.) 6 III. Discussion 7 A. Federal Rule of Civil Procedure 8 8 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and 9 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 11 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 12 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 14 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are 15 not. Id.; see also Twombly, 550 U.S. at 556–557. 16 The SAC is not a plain statement of Plaintiff’s claims. While short, the SAC does not 17 clearly state what happened that resulted in a violation of his rights. Plaintiff includes a 18 conclusory allegation that Defendant Gallean “negligently provided dental services,” but his 19 factual allegations failure to identify the services he claims were negligent. The allegations are 20 disjointed and difficult to understand. He alleges that Defendant Gallean drilled an additional 21 small hole, but it is unclear whether she patched that hole. (See Doc. 11 at 5.) Plaintiff’s limited 22 factual allegations are not sufficient to state a claim that is plausible on its face. 23 B. Federal Tort Claims Act 24 Plaintiff names the United States of America as a defendant under the FTCA based on the 25 alleged negligence of Defendant Michelle Gallean, an employee of Defendant Valley Health 26 Team, which is alleged to be a federally supported health center. 27 Under the Federally Supported Health Centers Assistance Act (“FSHCAA”), FTCA 28 1 coverage may be granted to certain federally qualified health centers and their employees. See 2 Blumberger v. Tilley, No. 22-56032, --- F.4th ---, 2024 WL 4113840, at *2 (9th Cir. Sept. 9, 3 2024) (explaining that under FSHCAA, federally funded health centers and their employees can 4 be “deemed” federal employees for the purposes of malpractice liability and that “[w]hen 5 deemed employees are sued for actions taken within the scope of their employment, the United 6 States is . . .
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1 2 3 4 5 6 7 10 11 MARK A. CROZIER, Case No. 1:24-cv-00255-BAM 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 VALLEY HEALTH TEAM, INC., et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 Plaintiff Mark A. Crozier (“Plaintiff”), proceeding pro se and in forma pauperis, initiated 18 this civil action on February 29, 2024. (Doc. 1.) On May 5, 2024, the Court screened Plaintiff’s 19 complaint and granted him leave to amend. (Doc. 4.) Plaintiff filed a first amended complaint on 20 May 28, 2024. (Doc. 5.) On July 7, 2024, the Court screened Plaintiff’s first amended complaint 21 and granted him leave to file a second amended complaint. (Doc. 6.) Plaintiff’s second amended 22 complaint, filed on August 29, 2024, is currently before the Court for screening. (Doc. 11.) 23 I. Screening Requirement and Standard 24 The Court screens complaints brought by persons proceeding in pro se and in forma 25 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 26 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 27 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 28 U.S.C. § 1915(e)(2)(B)(ii). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Summary of Plaintiff’s Allegations 15 Plaintiff drafted his second amended complaint (“SAC”) using a complaint form. The 16 form names the United States of America, Valley Health Team, and Michell Gallean1 as 17 defendants. Plaintiff identifies the basis of this Court’s jurisdiction as federal question. He 18 alleges that Valley Health Team is a federally qualified health center covered by the Federal Tort 19 Claims Act (“FTCA”), and that Michelle Gallean is an employee of Defendant Valley Health 20 Team. Plaintiff therefore invokes 28 U.S.C. §§ 1346(b) and 2401(b). (Doc. 11 at 3, 4.) In the 21 section in which he is asked to indicate the federal constitutional or federal statutory rights he 22 believes are at issue in this case, he again identifies the FTCA. (Id. at 4.) 23 Plaintiff asserts that he sent a written letter to the United States “Department of Health of 24 final denial claim,” pursuant to 28 C.F.R. § 14.9(b). (Doc. 11 at 4.) In the statement of claim, 25 Plaintiff alleges as follows:
26 Date 09/24/2019 [¶] Michell Galean DDS negligently provided dental services resulting [in] pain, eating, hot or cold. 6 to 7 month I find Michelle had drilled 27
28 1 The SAC also identifies defendant Gallean as “Galean.” (Doc. 11 at 4, 5.) 1 additional very small hole next to my other tooth she drilled then patched. As soon as numbing shot wore off I was in pain. [Valley] Health is federally funded 2 health center. That what makes United States of America a defendant in this case. [Causing] me harm and violating my right. 3 (Id. at 5.) As relief, Plaintiff seeks “monetary damage for pain and suffering future medical for 4 repairs and other economic damages subject to proof.” (Id. at 6.) He seeks actual damages 5 determined according to proof. (Id.) 6 III. Discussion 7 A. Federal Rule of Civil Procedure 8 8 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and 9 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 11 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 12 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 14 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are 15 not. Id.; see also Twombly, 550 U.S. at 556–557. 16 The SAC is not a plain statement of Plaintiff’s claims. While short, the SAC does not 17 clearly state what happened that resulted in a violation of his rights. Plaintiff includes a 18 conclusory allegation that Defendant Gallean “negligently provided dental services,” but his 19 factual allegations failure to identify the services he claims were negligent. The allegations are 20 disjointed and difficult to understand. He alleges that Defendant Gallean drilled an additional 21 small hole, but it is unclear whether she patched that hole. (See Doc. 11 at 5.) Plaintiff’s limited 22 factual allegations are not sufficient to state a claim that is plausible on its face. 23 B. Federal Tort Claims Act 24 Plaintiff names the United States of America as a defendant under the FTCA based on the 25 alleged negligence of Defendant Michelle Gallean, an employee of Defendant Valley Health 26 Team, which is alleged to be a federally supported health center. 27 Under the Federally Supported Health Centers Assistance Act (“FSHCAA”), FTCA 28 1 coverage may be granted to certain federally qualified health centers and their employees. See 2 Blumberger v. Tilley, No. 22-56032, --- F.4th ---, 2024 WL 4113840, at *2 (9th Cir. Sept. 9, 3 2024) (explaining that under FSHCAA, federally funded health centers and their employees can 4 be “deemed” federal employees for the purposes of malpractice liability and that “[w]hen 5 deemed employees are sued for actions taken within the scope of their employment, the United 6 States is . . . substituted as the defendant and the action proceeds as an FTCA suit”); see also 7 Velasquez v. United States, No. 2:13-CV-02559-JAM-AC, 2014 WL 3837294, at *1 (E.D. Cal. 8 Aug. 1, 2014). The FTCA gives district courts “exclusive jurisdiction of civil actions on claims 9 against the United States, for money damages ... for injury or loss of property, or personal injury 10 or death caused by the negligent or wrongful act or omission of any employee of the Government 11 while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). “The 12 United States is the only proper defendant in a FTCA action.” Lance v. United States, 70 F.3d 13 1093, 1095 (9th Cir. 1995). As a result, Defendants Valley Health Team and Michell Gallean 14 are not proper defendants under the FTCA. 15 “The FTCA provides that the United States shall be liable for tort claims ‘in the same 16 manner and to the same extent as a private individual under like circumstances.’” Gelazela v. 17 United States, No. 1:21-cv-01499-AWI-EPG (PC), 2022 WL 17368681, at *9 (E.D. Cal. Dec. 1, 18 2022) (citing United States v. Olson, 546 U.S. 43, 46 (2005); 28 U.S.C. § 2674). “To state a 19 claim for medical negligence or malpractice under California law, Plaintiff must establish ‘(1) 20 the duty of the professional to use such skill, prudence, and diligence as other members of his 21 profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 22 connection between the negligent conduct and the resulting injury; and (4) actual loss or damage 23 resulting from the professional’s negligence.’” Gelazela, 2022 WL 17368681, at *10 (citing 24 Sampson v. Ukiah Valley Med. Ct., No. 15-cv-00160-WHO, 2017 WL 2834001, at *3 (N.D. Cal. 25 June 30, 2017)). 26 Here, the SAC fails to state a cognizable medical negligence or malpractice claim. 27 Plaintiff’s amended complaint does not allege a duty of professional care or a breach of that 28 duty. The sparse and conclusory allegations, discussed above, are not adequate to support a 1 claim for medical negligence or malpractice. 2 Further, as Plaintiff was previously informed, administrative exhaustion is a required 3 element of a claim under the FTCA. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) 4 (“The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a 5 suit under the FTCA, and, as such, should be affirmatively alleged in the complaint.”) (citation 6 omitted). 7 28 U.S.C. § 2675(a), provides in part:
8 An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the 9 negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall 10 have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or 11 registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time 12 thereafter, be deemed a final denial of the claim for purposes of this section. 13 28 U.S.C. § 2675(a). 14 “This is a jurisdictional prerequisite to pursuing an FTCA claim in a district court.” 15 Gelazela, 2022 WL 17368681, at *10 (citing Brady v. United States, 211 F.3d 499, 502 (9th Cir. 16 2000)). “Because the requirement is jurisdictional, it ‘must be strictly adhered to. This is 17 particularly so since the FTCA waives sovereign immunity. Any such waiver must be strictly 18 construed in favor of the United States.’” Brady, 211 F.3d at 502 (quoting Jerves v. United 19 States, 966 F.2d 517, 521 (9th Cir.1992)). 20 Plaintiff’s SAC fails to adequately allege the timely filing of an administrative claim. 21 Plaintiff’s single allegation that he sent a written letter to the “Department of Health of final 22 denial claim” is insufficient to demonstrate exhaustion of his administrative remedies. (Doc. 11 23 at 4.) Plaintiff’s disjointed and unclear allegations do not show if and when he filed a claim with 24 the appropriate agency or that his claim was finally denied in writing (or that the agency failed to 25 make a final disposition of the claim within six months after it was filed). Despite being 26 informed of the exhaustion and related pleading requirements, Plaintiff has been unable to cure 27 this jurisdictional defect. Because Plaintiff has failed to allege that he exhausted his 28 administrative remedies as required by the FTCA, this Court does not have jurisdiction and the 1 action must be dismissed. 2 IV. Conclusion and Recommendation 3 For the reasons stated, Plaintiff fails to allege that he exhausted his remedies as required 4 by the FTCA prior to bringing this action. The Court therefore lacks jurisdiction. Accordingly, 5 the Clerk of the Court is HEREBY DIRECTED to randomly assign a District Judge to this 6 action. 7 Further, it is HEREBY RECOMMENDED that this action be DISMISSED for lack of 8 jurisdiction over this action. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days 11 after being served with these findings and recommendations, Plaintiffs may file written 12 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Plaintiffs are advised that the failure to file objections within 14 the specified time may result in the waiver of the “right to challenge the magistrate’s factual 15 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 16 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18
19 Dated: October 7, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20
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