1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CARLOS RICHARD LECROY, Case No.: 3:24-cv-00272-MMD-CSD
4 Plaintiff Report & Recommendation of United States Magistrate Judge 5 v. Re: ECF Nos. 1-1, 4 6 VA SIERRA NEVADA HEALTH CARE SYSTEM, 7 Defendant 8
9 This Report and Recommendation is made to the Honorable Miranda M. Du, Chief 10 United States District Judge. The action was referred to the undersigned Magistrate Judge 11 pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. 12 Plaintiff initiated this action by filing a Claim for Damage, Injury, or Death on Standard 13 Form 95 against the Department of Veterans Affairs (VA) Sierra Nevada Health Care System 14 asserting a claim for medical malpractice under the Federal Tort Claims Act (FTCA). (ECF No. 15 1-1.) 16 The initiating documents were not accompanied by an application to proceed in forma 17 pauperis (IFP) or the filing fee. The court gave Plaintiff 30 days to file a completed IFP 18 application or pay the filing fee. (ECF No. 3.) On July 30, 2024, Plaintiff filed an IFP 19 application. (ECF No. 4.) 20 I. IFP APPLICATION 21 A person may be granted permission to proceed IFP if the person “submits an affidavit 22 that includes a statement of all assets such [person] possesses [and] that the person is unable to 23 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 1 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 2 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 3 all actions filed IFP, not just prisoner actions). 4 In addition, the Local Rules of Practice for the District of Nevada provide: “Any person
5 who is unable to prepay the fees in a civil case may apply to the court for authority to proceed 6 [IFP]. The application must be made on the form provided by the court and must include a 7 financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 8 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 9 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 10 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 11 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 12 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 13 therefore, the application should be granted. 14 II. SCREENING
15 A. Standard 16 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 17 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 18 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 20 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 21 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 22 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 23 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 2 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 3 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 4 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America,
5 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 6 The court must accept as true the allegations, construe the pleadings in the light most 7 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 9 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (internal quotation marks and citation omitted). 11 A complaint must contain more than a “formulaic recitation of the elements of a cause of 12 action,” it must contain factual allegations sufficient to “raise a right to relief above the 13 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 14 must contain something more … than … a statement of facts that merely creates a suspicion [of]
15 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 16 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 17 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 A dismissal should not be without leave to amend unless it is clear from the face of the 19 complaint that the action is frivolous and could not be amended to state a federal claim, or the 20 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 21 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 22 /// 23 /// 1 B. Plaintiff’s Initiating Documents 2 Plaintiff seeks to assert a medical malpractice claim against the VA Sierra Nevada 3 Healthcare System related to care he received in May 2023. 4 The FTCA provides a procedure for asserting claims against the United States for money
5 damages for certain injuries, including personal injury, caused by the negligent or wrongful act 6 or omission of an employee of the United States acting within the scope of his or her 7 employment. A tort claim against the United States based on the negligent or wrongful act or 8 omission of an employee of the Department of Veterans Affairs may be filed using Standard 9 Form 95, Claim for Damage, Injury or Death. Plaintiff used the proper claim form. However, 10 before proceeding before the United States District Court, Plaintiff is required to present his 11 claim (within two years of the date the claim accrued) to the proper agency, here, the 12 Department of Veterans Affairs.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CARLOS RICHARD LECROY, Case No.: 3:24-cv-00272-MMD-CSD
4 Plaintiff Report & Recommendation of United States Magistrate Judge 5 v. Re: ECF Nos. 1-1, 4 6 VA SIERRA NEVADA HEALTH CARE SYSTEM, 7 Defendant 8
9 This Report and Recommendation is made to the Honorable Miranda M. Du, Chief 10 United States District Judge. The action was referred to the undersigned Magistrate Judge 11 pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. 12 Plaintiff initiated this action by filing a Claim for Damage, Injury, or Death on Standard 13 Form 95 against the Department of Veterans Affairs (VA) Sierra Nevada Health Care System 14 asserting a claim for medical malpractice under the Federal Tort Claims Act (FTCA). (ECF No. 15 1-1.) 16 The initiating documents were not accompanied by an application to proceed in forma 17 pauperis (IFP) or the filing fee. The court gave Plaintiff 30 days to file a completed IFP 18 application or pay the filing fee. (ECF No. 3.) On July 30, 2024, Plaintiff filed an IFP 19 application. (ECF No. 4.) 20 I. IFP APPLICATION 21 A person may be granted permission to proceed IFP if the person “submits an affidavit 22 that includes a statement of all assets such [person] possesses [and] that the person is unable to 23 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 1 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 2 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 3 all actions filed IFP, not just prisoner actions). 4 In addition, the Local Rules of Practice for the District of Nevada provide: “Any person
5 who is unable to prepay the fees in a civil case may apply to the court for authority to proceed 6 [IFP]. The application must be made on the form provided by the court and must include a 7 financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 8 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 9 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 10 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 11 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 12 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 13 therefore, the application should be granted. 14 II. SCREENING
15 A. Standard 16 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 17 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 18 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 20 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 21 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 22 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 23 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 2 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 3 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 4 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America,
5 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 6 The court must accept as true the allegations, construe the pleadings in the light most 7 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 9 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (internal quotation marks and citation omitted). 11 A complaint must contain more than a “formulaic recitation of the elements of a cause of 12 action,” it must contain factual allegations sufficient to “raise a right to relief above the 13 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 14 must contain something more … than … a statement of facts that merely creates a suspicion [of]
15 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 16 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 17 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 A dismissal should not be without leave to amend unless it is clear from the face of the 19 complaint that the action is frivolous and could not be amended to state a federal claim, or the 20 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 21 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 22 /// 23 /// 1 B. Plaintiff’s Initiating Documents 2 Plaintiff seeks to assert a medical malpractice claim against the VA Sierra Nevada 3 Healthcare System related to care he received in May 2023. 4 The FTCA provides a procedure for asserting claims against the United States for money
5 damages for certain injuries, including personal injury, caused by the negligent or wrongful act 6 or omission of an employee of the United States acting within the scope of his or her 7 employment. A tort claim against the United States based on the negligent or wrongful act or 8 omission of an employee of the Department of Veterans Affairs may be filed using Standard 9 Form 95, Claim for Damage, Injury or Death. Plaintiff used the proper claim form. However, 10 before proceeding before the United States District Court, Plaintiff is required to present his 11 claim (within two years of the date the claim accrued) to the proper agency, here, the 12 Department of Veterans Affairs. Only if the VA denies the administrative claim (or fails to make 13 a decision on the clam after six months) may a veteran then file a lawsuit in federal court under 14 the FTCA.
15 Therefore, Plaintiff’s federal court action should be dismissed without prejudice so that 16 he may pursue his administrative claim with the VA. 17 III. RECOMMENDATION 18 IT IS HEREBY RECOMMENDED that the District Judge enter an order: 19 (1) GRANTING Plaintiff’s IFP application (ECF No. 4). Plaintiff is permitted to 20 maintain this action without prepaying the filing fee. 21 (2) The initiating documents (ECF No. 1-1) should be FILED. 22 (3) The action should be DISMISSED WITHOUT PREJUDICE so Plaintiff can pursue 23 his claim with the VA. ] The Plaintiff should be aware of the following: 2 1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to 3] this Report and Recommendation within fourteen days of being served with a copy of the Report and Recommendation. These objections should be titled “Objections to Magistrate Judge’s Report and Recommendation” and should be accompanied by points and authorities for 6] consideration by the district judge. 7 2. That this Report and Recommendation is not an appealable order and that any notice of 8|| appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed 9} until entry of judgment by the district court. 10 Dated: September 16, 2024 CS oy Craig S. Denney 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23