Kassab v. The Regents of the University of California

S.D. California

Kassab v. The Regents of the University of California

DecidedJuly 3, 2024

Docket3:24-cv-00402

StatusUnknown

This text of Kassab v. The Regents of the University of California (Kassab v. The Regents of the University of California) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kassab v. The Regents of the University of California, (S.D. Cal. 2024).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVE KASSAB, Case No.: 24-cv-402-CAB-BLM

12 Plaintiff, ORDER GRANTING UNITED 13 v. STATES OF AMERICA’S MOTION TO DISMISS AND REMANDING TO 14 THE REGENTS OF THE UNIVERSITY STATE COURT OF CALIFORNIA, et al, 15 Defendants. 16 [Doc. Nos. 8, 19] 17 18 Presently before the Court is Defendant Regents of the University of California and 19 Defendant United States of America’s motions to dismiss. [Doc. Nos. 8, 19]. The motions 20 were fully briefed as of June 17, 2024 and the Court finds them suitable for determination 21 on the papers. For the reasons set forth, the United States of America’s motion to dismiss 22 is GRANTED and this case is REMANDED to state court for further proceedings. 23 I. BACKGROUND 24 On January 28, 2023, Plaintiff Steve Kassab allegedly went to the University of 25 California San Diego Medical Center to be treated for an illness. [Compl. at ¶ 7]. Plaintiff 26 allegedly received a medical exam and was told by employees of the medical center that 27 Plaintiff’s heart failure had “gotten worse” and he was referred to a different clinic in the 28 hospital. [Compl. at ¶ 9]. Instead of being taken to a different clinic for heart failure, he 1 was allegedly transferred to a psychiatrist who “placed Plaintiff on a psychiatric hold, 2 against his will.” [Compl. at ¶ 10]. Plaintiff was allegedly first placed on an initial hold 3 pursuant to California Welfare and Institutions Code § 5150, and further placed on an 4 involuntary hold pursuant to Welfare and Institutions Code § 5270. [Compl. at ¶ 12]. 5 Plaintiff was allegedly held in the hospital until February 14, 2023. [Compl. at ¶ 11]. 6 While in the hospital, Plaintiff was allegedly forced to take medication and was denied 7 family visitation. [Compl. at ¶ 16]. 8 On November 1, 2023, Plaintiff Steve Kassab, through his counsel at the time, filed 9 the Complaint in the San Diego County Superior Court against the Regents of the 10 University of California, the UC San Diego Medical Center, and various psychiatry 11 employees. [Doc. No. 1-4]. There are three state law causes of action in the Complaint: 12 (1) medical malpractice, (2) lack of informed consent, and (3) false imprisonment without 13 arrest. On February 29, 2024, Defendant United States of America removed the case to 14 this Court, substituting itself for Defendant Alice Kisteneff, an employee of the Navy at 15 the time of the events at issue. [Doc. No. 2]. On March 21, 2024, Defendant Regents of 16 the University of California filed a motion to dismiss. [Doc. No. 8]. On April 25, 2024, 17 Defendant United States of America filed a motion to dismiss. [Doc. No. 19]. In between 18 the filing of both motions, Plaintiff’s original counsel withdrew from representation and 19 Plaintiff is now proceeding pro se. 20 II. STANDARD FOR REVIEW 21 On a motion to dismiss pursuant to Rule 12(b)(1), the standard to be applied varies 22 according to the nature of the jurisdictional challenge. A motion to dismiss for lack of 23 subject matter jurisdiction may either attack the allegations of jurisdiction contained in the 24 complaint as insufficient on their face to demonstrate the existence of jurisdiction (“facial 25 attack”), or may be made as a “speaking motion” attacking the existence of subject matter 26 jurisdiction in fact (“factual attack”). Thornhill Publishing Co. v. General Tel. & Elec. 27 Corp., 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 28 F.2d 884, 891 (3d Cir.1977). If the motion constitutes a facial attack, the court must 1 consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 2 404, 412 (5th Cir.1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual 3 attack, however, “no presumptive truthfulness attaches to plaintiff's allegations, and the 4 existence of disputed material facts will not preclude the trial court from evaluating for 5 itself the merits of jurisdictional claims.” Thornhill, 594 F.2d at 733 (quoting Mortensen, 6 549 F.2d at 889). 7 In an action where the United States is named as a defendant, a court will have no 8 subject matter jurisdiction unless a specific statute can be relied upon which waives the 9 Government's sovereign immunity. See United States v. Alabama, 313 U.S. 274 (1941); 10 see also Soriano v. United States, 352 U.S. 270 (1957). “Limitations and conditions upon 11 which the government consents to be sued must be strictly observed and exceptions are not 12 to be implied.” Soriano, 352 U.S. at 276; see also United States v. King, 395 U.S. 1, 4 13 (1969). 14 III. DISCUSSION 15 First, the Court shall assess the merits of the United States’ motion to dismiss on 16 lack of jurisdiction, as it will determine whether this Court has jurisdiction over Plaintiff’s 17 claims. The United States argues that the Court lacks jurisdiction over Plaintiff’s tort 18 claims against it because he has not exhausted his administrative remedies pursuant to the 19 Federal Tort Claims Act (“FTCA”). The Court agrees. 20 To pursue tort claims such as false imprisonment and medical malpractice against 21 the government for the actions of its employees, a plaintiff must first exhaust all 22 administrative remedies as required by the FTCA. See 28 U.S.C. § 2675(a). “The 23 requirement of an administrative claim is jurisdictional” and cannot be waived. Brady v. 24 United States, 211 F.3d 499, 502 (9th Cir. 2000). To satisfy this requirement, a plaintiff 25 must first file such a claim with the agency, and have it finally denied by the agency in 26 writing, before it can be heard in federal court. See id. 27 Defendant United States asserts that Plaintiff has not filed an administrative claim 28 with the Department of the Navy and have submitted a declaration confirming this 1 || assertion. [Doc. No. 19-1]. Plaintiff’s response to the motions to dismiss does not respond 2 || to this argument or proffer that he attempted to file an administrative claim with the Navy 3 actions committed by Navy employee Alice Kisteneff. Ultimately, Plaintiff has failed 4 ||to comply with the FTCA, and the Court lacks subject matter jurisdiction over his claims 5 || against the United States of America. Accordingly, his claims against the United States of 6 || America are hereby DISMISSED. 7 Finally, because “dismissing Plaintiff’s claims against Defendant United States 8 || ‘extinguishes the only viable basis for federal jurisdiction, there is no reasonable basis for 9 exercising jurisdiction over Plaintiff’s remaining state law claims.’” Martinez v. Kaweah 10 || Delta Med. Ctr., No. 1:21-CV-01601-EPG, 2021 WL 6118650, at *4 (E.D. Cal. Dec. 27, 11 2021) (quoting Medina v. United States, No. 1:20-CV01030-AWI-SKO, 2020 WL 654497, 12 || at *2 (E.D. Cal. Nov. 6, 2020). Plaintiff filed this case in state court, all his causes of action 13 || arise under state law, and a state court is better suited to assess the merits of the Regents’ 14 motion to dismiss. Accordingly, the Court REMANDS the remainder of this action to 15 || state court. 16 IV. CONCLUSION 17 For the reasons set forth, the Court hereby DISMISSES Plaintiff’s claims against 18 |/the United States of America and REMANDS this case to the San Diego Superior Court 19 further proceedings. Plaintiff's motion to appoint counsel [Doc No.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVE KASSAB, Case No.: 24-cv-402-CAB-BLM

12 Plaintiff, ORDER GRANTING UNITED 13 v. STATES OF AMERICA’S MOTION TO DISMISS AND REMANDING TO 14 THE REGENTS OF THE UNIVERSITY STATE COURT OF CALIFORNIA, et al, 15 Defendants. 16 [Doc. Nos. 8, 19] 17 18 Presently before the Court is Defendant Regents of the University of California and 19 Defendant United States of America’s motions to dismiss. [Doc. Nos. 8, 19]. The motions 20 were fully briefed as of June 17, 2024 and the Court finds them suitable for determination 21 on the papers. For the reasons set forth, the United States of America’s motion to dismiss 22 is GRANTED and this case is REMANDED to state court for further proceedings. 23 I. BACKGROUND 24 On January 28, 2023, Plaintiff Steve Kassab allegedly went to the University of 25 California San Diego Medical Center to be treated for an illness. [Compl. at ¶ 7]. Plaintiff 26 allegedly received a medical exam and was told by employees of the medical center that 27 Plaintiff’s heart failure had “gotten worse” and he was referred to a different clinic in the 28 hospital. [Compl. at ¶ 9]. Instead of being taken to a different clinic for heart failure, he 1 was allegedly transferred to a psychiatrist who “placed Plaintiff on a psychiatric hold, 2 against his will.” [Compl. at ¶ 10]. Plaintiff was allegedly first placed on an initial hold 3 pursuant to California Welfare and Institutions Code § 5150, and further placed on an 4 involuntary hold pursuant to Welfare and Institutions Code § 5270. [Compl. at ¶ 12]. 5 Plaintiff was allegedly held in the hospital until February 14, 2023. [Compl. at ¶ 11]. 6 While in the hospital, Plaintiff was allegedly forced to take medication and was denied 7 family visitation. [Compl. at ¶ 16]. 8 On November 1, 2023, Plaintiff Steve Kassab, through his counsel at the time, filed 9 the Complaint in the San Diego County Superior Court against the Regents of the 10 University of California, the UC San Diego Medical Center, and various psychiatry 11 employees. [Doc. No. 1-4]. There are three state law causes of action in the Complaint: 12 (1) medical malpractice, (2) lack of informed consent, and (3) false imprisonment without 13 arrest. On February 29, 2024, Defendant United States of America removed the case to 14 this Court, substituting itself for Defendant Alice Kisteneff, an employee of the Navy at 15 the time of the events at issue. [Doc. No. 2]. On March 21, 2024, Defendant Regents of 16 the University of California filed a motion to dismiss. [Doc. No. 8]. On April 25, 2024, 17 Defendant United States of America filed a motion to dismiss. [Doc. No. 19]. In between 18 the filing of both motions, Plaintiff’s original counsel withdrew from representation and 19 Plaintiff is now proceeding pro se. 20 II. STANDARD FOR REVIEW 21 On a motion to dismiss pursuant to Rule 12(b)(1), the standard to be applied varies 22 according to the nature of the jurisdictional challenge. A motion to dismiss for lack of 23 subject matter jurisdiction may either attack the allegations of jurisdiction contained in the 24 complaint as insufficient on their face to demonstrate the existence of jurisdiction (“facial 25 attack”), or may be made as a “speaking motion” attacking the existence of subject matter 26 jurisdiction in fact (“factual attack”). Thornhill Publishing Co. v. General Tel. & Elec. 27 Corp., 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 28 F.2d 884, 891 (3d Cir.1977). If the motion constitutes a facial attack, the court must 1 consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 2 404, 412 (5th Cir.1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual 3 attack, however, “no presumptive truthfulness attaches to plaintiff's allegations, and the 4 existence of disputed material facts will not preclude the trial court from evaluating for 5 itself the merits of jurisdictional claims.” Thornhill, 594 F.2d at 733 (quoting Mortensen, 6 549 F.2d at 889). 7 In an action where the United States is named as a defendant, a court will have no 8 subject matter jurisdiction unless a specific statute can be relied upon which waives the 9 Government's sovereign immunity. See United States v. Alabama, 313 U.S. 274 (1941); 10 see also Soriano v. United States, 352 U.S. 270 (1957). “Limitations and conditions upon 11 which the government consents to be sued must be strictly observed and exceptions are not 12 to be implied.” Soriano, 352 U.S. at 276; see also United States v. King, 395 U.S. 1, 4 13 (1969). 14 III. DISCUSSION 15 First, the Court shall assess the merits of the United States’ motion to dismiss on 16 lack of jurisdiction, as it will determine whether this Court has jurisdiction over Plaintiff’s 17 claims. The United States argues that the Court lacks jurisdiction over Plaintiff’s tort 18 claims against it because he has not exhausted his administrative remedies pursuant to the 19 Federal Tort Claims Act (“FTCA”). The Court agrees. 20 To pursue tort claims such as false imprisonment and medical malpractice against 21 the government for the actions of its employees, a plaintiff must first exhaust all 22 administrative remedies as required by the FTCA. See 28 U.S.C. § 2675(a). “The 23 requirement of an administrative claim is jurisdictional” and cannot be waived. Brady v. 24 United States, 211 F.3d 499, 502 (9th Cir. 2000). To satisfy this requirement, a plaintiff 25 must first file such a claim with the agency, and have it finally denied by the agency in 26 writing, before it can be heard in federal court. See id. 27 Defendant United States asserts that Plaintiff has not filed an administrative claim 28 with the Department of the Navy and have submitted a declaration confirming this 1 || assertion. [Doc. No. 19-1]. Plaintiff’s response to the motions to dismiss does not respond 2 || to this argument or proffer that he attempted to file an administrative claim with the Navy 3 actions committed by Navy employee Alice Kisteneff. Ultimately, Plaintiff has failed 4 ||to comply with the FTCA, and the Court lacks subject matter jurisdiction over his claims 5 || against the United States of America. Accordingly, his claims against the United States of 6 || America are hereby DISMISSED. 7 Finally, because “dismissing Plaintiff’s claims against Defendant United States 8 || ‘extinguishes the only viable basis for federal jurisdiction, there is no reasonable basis for 9 exercising jurisdiction over Plaintiff’s remaining state law claims.’” Martinez v. Kaweah 10 || Delta Med. Ctr., No. 1:21-CV-01601-EPG, 2021 WL 6118650, at *4 (E.D. Cal. Dec. 27, 11 2021) (quoting Medina v. United States, No. 1:20-CV01030-AWI-SKO, 2020 WL 654497, 12 || at *2 (E.D. Cal. Nov. 6, 2020). Plaintiff filed this case in state court, all his causes of action 13 || arise under state law, and a state court is better suited to assess the merits of the Regents’ 14 motion to dismiss. Accordingly, the Court REMANDS the remainder of this action to 15 || state court. 16 IV. CONCLUSION 17 For the reasons set forth, the Court hereby DISMISSES Plaintiff’s claims against 18 |/the United States of America and REMANDS this case to the San Diego Superior Court 19 further proceedings. Plaintiff's motion to appoint counsel [Doc No. 30] is hereby 20 || DENIED AS MOOT. 21 The Clerk of Court shall REMAND this action and CLOSE this case. 22 23 It is so ORDERED. 24 Dated: July 3, 2024 € Z 25 Hon. Cathy Ann Bencivengo 26 United States District Judge 27 28

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