Kappler v. VA Medical Center

• Court: District Court, D. Arizona
• Decided: February 18, 2025
• Docket: 4:24-cv-00274
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 David Kappler, No. CV-24-00274-TUC-AMM

10 Plaintiff, ORDER

11 v.

12 VA Medical Center, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant United States of America’s Motion to 16 Dismiss for Lack of Jurisdiction. (Doc. 4.) Plaintiff David Kappler, proceeding pro se, 17 did not respond.1 For the following reasons, the Court will grant the motion. 18 I. Background 19 On June 20, 2023, Plaintiff filed this medical malpractice action against the 20 “Veterans Affairs Hospital” and Jennifer Gutowski, Director of the Southern Arizona 21 Veterans Affairs Health Care System. (Doc. 1-4 at 2.) Plaintiff alleges that he underwent 22 surgery at the VA Medical Center in Tucson, Arizona and suffered lasting complications. 23 (Id. at 3–4, 5, 7–11.) On May 29, 2024, Defendant United States of America2 removed

24 1 Over the course of six months, the Court granted five requests to extend Plaintiff’s deadline to respond to the Motion to Dismiss. (Docs. 8, 11, 15, 18–19.) The Court denied 25 his final extension requests (Docs. 24, 28) and denied his Motion to Continue Lawsuit (Doc. 32). 26 2 The Department of Veterans Affairs, which operates the VA Medical Center, is an agency of the United States of America. (Doc. 1 at 1.) Accordingly, the United States is 27 the proper defendant in an action under the Federal Tort Claims Act (“FTCA”). Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam) (citing 28 U.S.C. § 28 2679(a)). The Pima County Superior Court dismissed Defendant Gutowski for lack of service of process. (Doc. 1-8 at 19–20.) 1 this action to the U.S. District Court for the District of Arizona. (Doc. 1.) 2 Upon removal, Defendant filed a Motion to Dismiss arguing that the Court lacks 3 subject matter jurisdiction because Plaintiff failed to exhaust his administrative remedies 4 under the Federal Tort Claims Act (“FTCA”). (Doc. 4.) Specifically, Defendant asserts 5 Plaintiff failed to present his claim to the VA and wait for a final denial before he filed 6 his lawsuit. (Id. at 5.) Defendant includes a sworn declaration from Jenny Mai, a Staff 7 Attorney with the VA Torts Law Group who avers that the VA “has not received any 8 administrative claim from David Kappler regarding a June 21, 2021 surgery, and 9 accordingly, has not denied such a claim.” (Doc. 4-1 at 2–3.) 10 II. Standard of Review 11 “[A] federal court may not entertain an action over which it has no jurisdiction.” 12 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000); Fed. R. Civ. P. 12(h)(3) (“If 13 the court determines at any time that it lacks subject matter jurisdiction, the court must 14 dismiss the action.”). A defendant may also move to dismiss for lack of subject matter 15 jurisdiction. Fed. R. Civ. P. 12(b)(1). On a motion to dismiss pursuant to Rule 12(b)(1), 16 the Court is not “restricted to the face of the pleadings, but may review and evidence, 17 such as affidavits and testimony, to resolve factual disputes concerning the existence of 18 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). 19 As a sovereign, the United States is generally immune from suit unless it waives 20 sovereign immunity by consenting to be sued. Dunn & Black, P.S. v. United States, 492 21 F.3d 1084, 1088 (9th Cir. 2007) (quoting Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th 22 Cir. 1985)). This waiver of sovereign immunity “cannot be implied, but must be 23 unequivocally expressed.” Id. Otherwise, “dismissal of the action is required . . . 24 [because] the existence of such consent is a prerequisite for jurisdiction.” Id. 25 Under the FTCA, the United States has waived sovereign immunity for tort 26 liability “under circumstances where the United States, if a private person, would be 27 liable to the claimant in accordance with the law of the place where the act or omission 28 occurred.” 28 U.S.C. § 1346(b)(1). However, the plaintiff must satisfy procedural 1 jurisdictional requirements before he can bring a tort claim against the United States. 28 2 U.S.C. § 2675(a); see also Munns v. Kerry, 782 F.3d 402, 413 (9th Cir. 2015) (holding 3 the United States did not waive sovereign immunity when plaintiffs failed to exhaust 4 their administrative remedies under the FTCA). The FTCA requires (1) the claimant to 5 have “first presented the claim to the appropriate Federal agency” and (2) for the claim to 6 “have been finally denied by the agency in writing and sent by certified or registered 7 mail.” 28 U.S.C. § 2675(a). It specifies that if more than six months have passed without 8 the agency issuing a final disposition of the claim, the claimant may construe this as a 9 final denial. Id. A claimant does not present the claim within the meaning of the statute 10 unless the federal agency receives a “Standard Form 95 or other written notification of an 11 incident, accompanied by a claim for money damages in a sum certain for injury to or 12 loss of property, personal injury, or death alleged to have occurred by reason of the 13 incident.” 28 C.F.R. § 14.2(a). 14 The “plaintiff bears the burden of persuading the court that it has subject matter 15 jurisdiction under the FTCA’s general waiver of immunity.” Prescott v. United States, 16 973 F.2d 696, 701 (9th Cir. 1992) (citing 28 U.S.C. § 1346(b)). In other words, the 17 plaintiff must establish that he satisfied the procedural requirements of the FTCA and that 18 the Court, therefore, has subject matter jurisdiction. “A district court may dismiss a pro se 19 complaint for failure to allege compliance with the FTCA's administrative exhaustion 20 requirement if it clearly appears that the deficiency cannot be overcome by amendment.” 21 Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1140 (9th Cir. 2013) (citing Gillespie v. 22 Civiletti, 629 F.2d 637, 640 (9th Cir. 1980)). 23 III. Analysis 24 The Court will dismiss this action. Plaintiff included with his Complaint a 25 completed Standard Form 95, but it appears he never presented this form to the VA. 26 (Doc. 1-4 at 14.) Plaintiff makes no argument that he submitted the form to the VA. 27 Moreover, Plaintiff signed the form on June 12, 2023 and filed suit in Pima County 28 Superior Court on June 20, 2023. (Id. at 2, 14.) Therefore, even if Plaintiff had submitted || the completed Standard Form 95 to the VA, he did not wait for a final denial or a six- || month period before filing his lawsuit. 3 In his Motion to Continue Lawsuit, Plaintiff states he “did not know the rules” and 4|| “the instructions for suing the VA were not clear.’ (Doc. 26 at 2.) This does not alter the || fact that Plaintiff did not satisfy the procedural requirements to show that the United 6 || States waived sovereign immunity as to his claim. Having determined that it lacks subject □□ matter jurisdiction, the Court must dismiss Plaintiff's action. Fed. R. Civ. P. 12(h)(3). 8 || The Court finds that amendment would be futile. 9 IV. Conclusion 10 For the foregoing reasons, 11 IT IS ORDERED that Defendant’s Motion to Dismiss is GRANTED. (Doc. 4.) || This matter is DISMISSED. The Clerk of Court shall docket accordingly, term any 13 | pending motions, and close the file in this case. 14 Dated this 14th day of February, 2025. 15 16 Dw. 2. Ywucte 17 ~ Honorable Angela M. Martinez 18 United States District Judge 19 20 21 22 23 24 25 26 > The Court construed Plaintiff's Motion to Continue Lawsuit as a motion to stay and denied Plaintiff’s request to further delay decision on the Motion to Dismiss. (Doc. 32.) However, the Court noted, “[t]o the extent Plaintiff intends this statement to address || Defendant’s Motion to Dismiss, the Court will consider it when deciding the Motion to Dismiss.” (/d. at 5 n. 4.) -4-