Nealy v. United States

• Court: District Court, W.D. Washington
• Decided: February 14, 2022
• Docket: 2:22-cv-00136
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 RANDELL B. NEALY, CASE NO. C22-0136-JCC 10 Plaintiff, ORDER 11 v. 12 VETERANS AFFAIRS HOSPITAL, 13 Defendant. 14

15 On February 9, 2022, the Honorable Brian A. Tsuchida, United States Magistrate Judge, 16 granted Plaintiff’s motion to proceed in forma pauperis. (Dkt. No. 1.) Plaintiff filed a Federal 17 Tort Claims Act (“FTCA”) action alleging medical malpractice against the United States of 18 America and Seattle Veterans Affairs Hospital (“VAH”) for care received at the VAH between 19 late 2016 and April 2019. (Dkt. No. 5.) Specifically, the complaint alleges that VAH made 20 diagnostic errors while treating Plaintiff’s gastrointestinal ailment. (Id. at 14.) Plaintiff seeks 21 $342,000 in damages from Defendants for two and half years of pain and suffering due to 22 various significant physical symptoms he allegedly suffered. (Id.) 23 The Court must dismiss before service a complaint filed in forma pauperis if it “fails to 24 state a claim on which relief may be granted; or seeks monetary relief against a defendant who is 25 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii) (section numbering omitted); see 26 Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000). 1 Under the doctrine of sovereign immunity, the United States is immune from suit for 2 damages except where Congress has expressly waived its immunity. See Lehman v. Nakshian, 3 453 U.S. 156, 160 (1981). Sovereign immunity can be a perplexing concept for those unfamiliar 4 with it, because it contradicts the general principle that people can sue those who injure them. 5 The FTCA contains a limited waiver of sovereign immunity. See 28 U.S.C. § 1346(b). It 6 provides federal district courts with exclusive jurisdiction over civil actions for damages against 7 the United States for injuries caused by the negligent or wrongful conduct of its agents or 8 employees acting within the scope of their employment to the extent that a private party would 9 be liable under state law. 28 U.S.C. § 1346(b)(1). Under 38 U.S.C. § 7316(a), the FTCA is the 10 exclusive remedy for negligence or medical malpractice claims associated with treatment from 11 Veterans Health Administration health care personnel. See Tunac v. United States, 897 F.3d 12 1197, 1204–05 (9th Cir. 2018); Cavezza v. Metcalf, 260 F. Supp. 3d 823, 827 (E.D. Ky. 2017). 13 The United States is the proper defendant in such cases. Id. 14 However, “[t]he FTCA bars claimants from bringing suit in federal court until they have 15 exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). 16 Before filing suit against the Government, a plaintiff must present an administrative tort claim to 17 the “appropriate federal agency” within two years after the claim accrues. 28 U.S.C. §§ 2401(b), 18 2675(a). If that agency denies the claim in writing or fails to dispose it of within six months, the 19 claimant can initiate a federal action. 28 U.S.C. § 2675(a). 20 Here, Plaintiff fails to show that he has provided written notice of his claims to the 21 Department of Veterans Affairs, or that the agency denied his claim in writing, or failed to 22 dispose of his claim within six months of filing. Accordingly, the Court must dismiss Plaintiff’s 23 complaint under § 1915(e), because, until Plaintiff exhausts his administrative remedies, his 24 lawsuit seeks relief against a defendant that is immune. 25 For the foregoing reasons, Plaintiff’s complaint (Dkt. No. 5) is DISMISSED without 26 prejudice, and his motion to appoint counsel (Dkt. No. 6) is DENIED as moot. 1 DATED this 14th day of February 2022. 2 3 A 4 5 6 John C. Coughenour 7 UNITED STATES DISTRICT JUDGE

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26