Duarte v. VA Hospital

• Court: District Court, E.D. California
• Decided: April 3, 2024
• Docket: 1:23-cv-00493
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 FRANCES G. DUARTE, Case No. 1:23-cv-00493-JLT-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE TO STATE A 11 v. CLAIM 12 VA HOSPITAL, (Doc. 1)

13 Defendant. 21-DAY DEADLINE

14 15 16

17 I. INTRODUCTION 18 A. Background 19 Plaintiff Frances G. Duarte, proceeding pro se and in forma pauperis, filed a complaint on 20 April 3, 2023. (Doc. 1). The Court screened Plaintiff’s complaint and concluded that it failed to 21 state a cognizable claim. (Doc. 5). The Court advised Plaintiff that she had three options for how 22 to proceed: Plaintiff could file (1) an amended complaint, which would be screened in due course; 23 (2) a statement that she wishes to stand on the initial complaint and have it reviewed by the 24 presiding district judge, in which case the Court would issue findings and recommendations to the 25 district judge consistent with its screening order; or (3) a notice of voluntary dismissal. (See id. at 26 1.) Plaintiff filed two documents in response to the Court’s screening order. (Docs. 6–7.) One 27 document indicated she wished to pursue the first option of filing a first amended complaint (Doc. 28 1 6), while the other indicated she wished to pursue the second option of standing on her initial 2 complaint (Doc. 7). The Court issued a minute order (Doc. 8), ordering Plaintiff to clarify 3 whether she intended to file an amended complaint or to stand on the original. The order was 4 returned as undeliverable when served to the address on record, and Plaintiff failed to file 5 anything by the deadline set by the Court. 6 Plaintiff did not contact the Court within the 63-period after the minute order was 7 returned, as required by Local Rule 183(b). The Court ordered the Plaintiff to show cause within 8 21 days as to why the action should not be dismissed for Plaintiff’s failure to comply with the 9 Court’s order and the Local Rules, as well as the Plaintiff’s failure to prosecute. (Doc. 9). 10 Alternatively, the order stated Plaintiff could file (1) an amended complaint captioned "First 11 Amended Complaint," which would refer to case number 1:23-cv-00493-JLT-SKO and be 12 complete in itself without reference to the prior or superseded pleading; (2) a statement captioned 13 "Notice to the Court," indicating that Plaintiff wants to stand on the initial complaint and have it 14 reviewed by the presiding district judge; or (3) a notice of voluntary dismissal. The order was 15 served on Plaintiff on September 1, 2023. See Docket. On September 26, 2023, Plaintiff filed a 16 notice of a change of address, and she was re-served by mail the same day. (Doc. 10). Plaintiff 17 filed a First Amended Complaint on October 4, 2023. (Doc. 11). Accordingly, the Court 18 discharged Plaintiff’s Order to Show Cause (Doc. 12). 19 Plaintiff’s First Amended Complaint is now before the Court for screening. The 20 undersigned finds that Plaintiff has not stated a cognizable claim and will recommend that this 21 action be dismissed without prejudice and without leave to amend.1 22 B. Screening Requirement and Standard 23 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to 24 screen each case and shall dismiss the case at any time if the Court determines that the allegation 25 of poverty is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim 26 upon which relief may be granted, or seeks monetary relief against a defendant who is immune 27 1 In its Second Screening Order (Doc. 12), the undersigned presented Plaintiff with an opportunity to file a Second 28 Amended Complaint, but she chose to stand on her First Amended Complaint. 1 from such relief. 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th 2 Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint); Barren v. 3 Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a 4 claim). If the Court determines that a complaint fails to state a claim, leave to amend may be 5 granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. 6 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 7 In determining whether a complaint fails to state a claim, the Court uses the same pleading 8 standard used under Federal Rule of Civil Procedure 8(a). 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. 10 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 11 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A 13 complaint may be dismissed as a matter of law for failure to state a claim based on (1) the lack of 14 a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri 15 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must allege a minimum 16 factual and legal basis for each claim that is sufficient to give each defendant fair notice of what 17 the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of 18 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 20 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 21 94 (2007). The Court, however, need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 22 U.S. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 23 liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 24 Id. (quoting Twombly, 550 U.S. at 557). 25 C. Summary of the Complaint 26 Plaintiff prepared the First Amended Complaint on a form titled “Amended Complaint for 27 a Civil Case.” (Doc. 11.) In the caption of the complaint, Plaintiff lists the names of several 28 plaintiffs, including Christine Duarte (daughter), Anthony Duarte (son), Joseph Duarte (son), 1 Christopher Duarte (son) and Jeffrey Duarte (son). (Id. at 1, 5.) However, Plaintiff later only 2 lists herself and Christine (Id. at 2) as plaintiffs in the case, and only Plaintiff signed the 3 complaint (id. at 9). The complaint names “VA Hospital” as the only defendant. (See Doc. 11 at 4 1-2.) Plaintiff did not include a civil cover sheet in violation of Local Rule 200. 5 Under “Basis for Jurisdiction,” Plaintiff checked the box for “Federal question.” (Doc. 11 6 at 3.) In the section of the complaint asking Plaintiff to list the specific federal statutes, federal 7 treaties, or provisions of the United States Constitution that are at issue in this case, Plaintiff 8 listed “medical malpractice” and “wrongful death.” (Id. at 4.) The complaint notes that Plaintiff 9 is a citizen of California. (Id. at 4–5). 10 Plaintiff alleges her husband sought care for Covid-19 from the defendant VA Hospital. 11 (Id. at 5). As his condition improved, Plaintiff left the hospital on an unknown date. (Id. at 6.) 12 Hospital staff later called Plaintiff and instructed her to return to the hospital quickly. (Id.) When 13 she returned, a “GI doctor” informed her that her husband needed a blood transfusion, and a 14 surgeon refused to perform surgery because “then he would be blamed for the bleeding” and “he 15 didn’t want to take the blame for another nurse[’s] negligence.” (Id.) Plaintiff states “all veterans 16 . . . serve our country at least they should get proper care.” (Id.). 17 D. Pleading Requirements Under Federal Rule of Civil Procedure 8(a) 18 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 19 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 20 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 21 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 22 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 23 quotation marks and citation omitted). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 25 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff 27 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 28 face.’ “ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are 1 accepted as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 2 at 555). 3 The Court construes pleadings of pro se litigants liberally and affords them the benefit of 4 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 5 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not their legal 6 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 7 of a civil rights complaint may not supply essential elements of the claim that were not initially 8 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 9 quotation marks and citation omitted), and courts “are not required to indulge unwarranted 10 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 11 marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 12 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 13 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 14 II. DISCUSSION 15 For the reasons discussed below, the Court finds that the First Amended Complaint does 16 not state any cognizable claims. Because there are no facts Plaintiff could allege to establish a 17 claim at this stage, the undersigned recommends denying leave to amend because amendment 18 would be futile. 19 A. Plaintiff Has Not Pled Any Cognizable Basis for Federal Court Jurisdiction 20 1. Legal Standard 21 Construing the complaint liberally, as it must, Erickson, 551 U.S. at 94, the Court 22 interprets Plaintiff’s allegations as claims of medical malpractice and negligence under the 23 Federal Tort Claims Act (“FTCA”) against the United States Department of Veterans Affairs 24 (“VA”). See Brumfield v. Dep’t of Veteran Affairs, No. 14–cv–04647–JSC, 2015 WL 294380, at 25 *4 (N.D. Cal. Jan. 22, 2015) (the FTCA “provides the exclusive remedy for torts committed by 26 federal employees”). 27 The FTCA gives district courts “exclusive jurisdiction of civil actions on claims against 28 the United States, for money damages . . . for injury or loss of property, or personal injury or 1 death caused by the negligent or wrongful act or omission of any employee of the Government 2 while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). A plaintiff 3 may bring medical malpractice and negligence claims against VA medical professionals under the 4 FTCA. See Tunac v. United States, 897 F.3d 1197, 1205 (9th Cir. 2018); accord Manning v. 5 United States Dep’t of Veterans Affairs, No. 2:19-cv-00494 TLN AC (PS), 2019 WL 1437639, at 6 *2 (E.D. Cal. Apr. 1, 2019). For example, in Tunac, a late veteran’s spouse was permitted to 7 proceed under the FTCA on a claim that inadequate treatment by VA healthcare employees 8 constituted medical negligence that caused her husband’s death. Tunac, 897 F.3d at 1205. 9 However, “courts dismiss tort claims against federal agencies or the United States for lack 10 of subject matter jurisdiction where the plaintiff fails to allege exhaustion of administrative 11 remedies.” Brown v. Bode Constr., No. 16–cv–01148–JSC, 2016 WL 1588382, at *3 (N.D. Cal. 12 Apr. 20, 2016). Specifically, the FTCA requires that an injured party file an administrative claim 13 with the federal agency before filing a lawsuit. 28 U.S.C. § 2675 provides, in relevant part, that: 14 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 15 caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless 16 the claimant shall have first presented the claim to the appropriate Federal 17 agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make 18 final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the 19 claim for purposes of this section. 20 28 U.S.C. § 2675(a) (emphasis added); see also McNeil v. United States, 508 U.S. 106, 113 21 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted 22 their administrative remedies.”). 23 “The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing 24 of a suit under the FTCA, . . . and, as such, should be affirmatively alleged in the complaint.” 25 Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); accord Jerves v. United States, 966 F.2d 26 517, 519 (9th Cir. 1992); Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). “A district 27 court may dismiss a complaint for failure to allege this jurisdictional prerequisite.” Gillespie, 629 28 F.2d at 640; see also Brady, 211 F.3d at 502 (“Because the requirement is jurisdictional, it ‘must 1 be strictly adhered to.’”). “However, the pleader should be given an opportunity to file an 2 amended complaint to cure such pleading defects.” Gillespie, 629 F.2d at 640. 3 “The FTCA provides that the United States shall be liable for tort claims ‘in the same 4 manner and to the same extent as a private individual under like circumstances.’” Gelazela v. 5 United States, No. 1:21-cv-01499-AWI-EPG (PC), 2022 WL 17368681, at *9 (E.D. Cal. Dec. 1, 6 2022) (citing United States v. Olson, 546 U.S. 43, 46 (2005); 28 U.S.C. § 2674). “To state a 7 claim for medical negligence or malpractice under California law, Plaintiff must establish ‘(1) the 8 duty of the professional to use such skill, prudence, and diligence as other members of his 9 profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 10 connection between the negligent conduct and the resulting injury; and (4) actual loss or damage 11 resulting from the professional's negligence.’” Gelazela, 2022 WL 17368681, at *10 (citing 12 Sampson v. Ukiah Valley Med. Ct., No. 15-cv-00160-WHO, 2017 WL 2834001, at *3 (N.D. Cal. 13 June 30, 2017)). 14 2. Analysis 15 In its current form, the complaint does not state a claim upon which relief can be granted 16 because it does not allege compliance with the FTCA. See, e.g., Manning, 2019 WL 1437639, at 17 *2. While Plaintiff may bring claims for medical malpractice and negligence under the FTCA, 18 she must first allege facts that plausibly establish that she exhausted her administrative remedies 19 with the VA before this Court has jurisdiction. See, e.g., Kendall v. Dep’t of Veterans Affairs, 20 360 Fed. Appx. 902, 903 (9th Cir. 2009) (“The district court properly dismissed the medical 21 malpractice claim without prejudice for lack of subject matter jurisdiction because [the plaintiff] 22 did not allege in his complaint that he filed an administrative claim with the VA before filing 23 suit.”); Brumfield, 2015 WL 294380, at *4 (“[T]he Court dismisses the tort claims in the instant 24 complaint for lack of subject matter jurisdiction; in particular, Plaintiffs have failed to allege that 25 [they] have properly exhausted their claims with the [VA].”). If Plaintiff has not yet exhausted 26 her administrative remedies, “this lawsuit is premature and cannot go forward.” Brumfield, 2015 27 WL 294380, at *5. Plaintiff offers no facts in her First Amended Complaint suggesting she 28 timely sought administrative relief from the VA before filing the instant action. Because she has 1 not plausibly alleged that she complied with the FTCA, this Court is without subject matter 2 jurisdiction. 3 Plaintiff also lists the names of several plaintiffs in the complaint’s caption and identifies 4 them as her children, but it is unclear if they are adults or minors. Regardless, Plaintiff may only 5 sue based on injuries she herself has suffered. See Brumfield, 2015 WL 294380, at *5. She 6 cannot sue “to rectify wrongs done to others,” including friends and family. Id. Pro se litigants 7 may not “pursu[e] claims on behalf of others in a representative capacity.” Simon v. Hartford Life 8 and Accident Ins. Co., 546 F.3d 661, 664 (9th Cir. 2008); see also Johns v. County of San Diego, 9 114 F.3d 874, 876 (9th Cir. 1997) (a parent may not bring suit on behalf of a minor without 10 retaining an attorney in federal court). It is unclear whether the other named plaintiffs have taken 11 part in lodging the complaint. However, they have not filed applications to proceed in forma 12 pauperis (see Doc. 2) and “[e]very pleading, written motion, and other paper must be signed by . . 13 . a party personally if the party is unrepresented.” Fed. R. Civ. P. 11. Therefore, any other 14 plaintiffs must either be stricken from the filings or other plaintiffs wishing to join the action must 15 either pay the filing fee or file a motion to proceed in forma pauperis. See, e.g., Remmert v. 16 Newsome, No. 1:23-cv-00050-ADA-HBK, 2023 WL 1806277, at *1 ((E.D. Cal. April 30, 2021) 17 (“In addition, although only one filing fee needs to be paid per case, if multiple plaintiffs seek to 18 proceed in forma pauperis, each plaintiff must qualify for IFP status. Each named plaintiff must 19 submit separate applications to proceed as a pauper before a court will grant multiple plaintiffs in 20 forma pauperis status in one action.”) (citing Liang v. Kallis, No. 2:21-cv-0595-JAM-CKD, 2021 21 WL 1721668, at *1 (E.D. Cal. April 30, 2021)). 22 3. Leave to Amend Would Be Futile 23 When dismissing a complaint, the Ninth Circuit has stated that “leave to amend should be 24 granted unless the district court determines that the pleading could not possibly be cured by the 25 allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal 26 quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996). If it is clear after 27 careful consideration that a complaint cannot be cured by amendment, the court may dismiss 28 without leave to amend. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); see also 1 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez, 203 F.3d at 1129 2 (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”). 3 The complaint has not set forth any cognizable federal claim. Because Plaintiff has failed 4 to plead facts sufficient to state a federal claim, the complaint should be dismissed without 5 prejudice. At this stage, amendment would be futile because there is no set of facts Plaintiff 6 could allege in an amended complaint to establish a claim. The undersigned recommends 7 denying leave to amend because amendment would be futile. 8 9 III. CONCLUSION AND RECOMMENDATION 10 Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed 11 without prejudice and without leave to amend. 12 These Findings and Recommendation will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within 14 twenty-one (21) days after being served with these Findings and Recommendation, any party 15 may file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file 17 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 18 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 19 Cir. 1991)). 20 IT IS SO ORDERED. 21

22 Dated: March 20, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23

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