Smith v. Puget Sound Allergy, Asthma & Immunology

• Court: District Court, W.D. Washington
• Decided: May 10, 2021
• Docket: 3:21-cv-05169
• 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 DARREN LEE SMITH, CASE NO. C21-5169-JCC 10 Plaintiff, ORDER 11 v. 12 PUGET SOUND ALLERGY, ASTHMA & IMMUNOLOGY on behalf of Jane Doe, 13 Defendant. 14 15 This matter comes before the Court sua sponte. On May 6, 2021, the Honorable Theresa 16 L. Fricke, United States Magistrate Judge, granted Plaintiff’s motion to proceed in forma 17 pauperis and recommended the Court review the complaint under 28 U.S.C. § 1915(e)(2)(B) 18 prior to the issuance of a summons. (Dkt. No. 6 at 1.) 19 Plaintiff alleges that in October 2020, an employee at Puget Sound Allergy, Asthma & 20 Immunology (“PSAAI”) “damaged [his] right arm with needles and told [him] all men are 21 nothing and are pawns.” (Dkt. No. 7 at 5.) He further alleges that “a [d]octor confirmed 22 noticeable needle hole pigmentation skin changes four months later.” (Id.) Based on these 23 allegations, he brings claims against PSAAI based on 38 U.S.C. § 7316, 51 U.S.C. § 21037, 24 medical malpractice, assault, and medical negligence. (Id. at 3.) 25 26 1 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss an in forma pauperis 2 complaint at any time if it fails to state a claim, raises frivolous or malicious claims, or seeks 3 monetary relief from a defendant who is immune from such relief. To avoid dismissal for failure 4 to state a claim, a complaint must contain sufficient factual matter, accepted as true, to state a 5 claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The 6 complaint must be dismissed if it lacks a cognizable legal theory or states insufficient facts to 7 support a cognizable legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). The Court 8 also has an independent obligation to address whether it has subject matter jurisdiction over 9 Plaintiff’s claims. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004). The Court 10 liberally construes pro se complaints. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 11 Even liberally construing Plaintiff’s complaint, the Court finds it is subject to dismissal 12 for failure to state a claim and lack of subject matter jurisdiction. First, Plaintiff’s claims under 13 38 U.S.C. § 7316 and 51 U.S.C. § 20137 are not legally cognizable. Neither of these statues 14 provide a cause of action. Rather, they confer immunity on Department of Veterans Affairs 15 (“VA”) and National Aeronautics and Space Administration (“NASA”) medical personnel by 16 requiring patients injured by these personnel to recover from the United States under the Federal 17 Tort Claims Act (“FTCA”) rather than from the individual practitioners. To the extent Plaintiff 18 intends to assert a claim under the FTCA, he fails to allege sufficient facts to support such a 19 claim. The FTCA allows suits against the United States for personal injury caused by a 20 government employee’s negligence under certain circumstances. 28 U.S.C. §§ 1346(b)(1), 2674. 21 Plaintiff’s complaint names only PSAAI as a defendant and alleges no negligent conduct by 22 employees of the VA, NASA, or any other government agency. Accordingly, the Court 23 DISMISSES Plaintiff’s federal claims. 24 Plaintiff’s remaining claims are state law claims for medical malpractice, medical 25 negligence, and assault. Where, as here, the Court has dismissed all claims over which it has 26 original jurisdiction, the Court may decline to exercise supplemental jurisdiction over related 1 state law claims. 28 U.S.C. § 1367(c)(3). In the absence of any viable federal claim, the Court 2 declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. Accordingly, the 3 Court DISMISSES Plaintiff’s complaint without prejudice. Because amendment would be futile, 4 the dismissal is without leave to amend. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 5 (9th Cir. 1996). Plaintiff’s motion to change venue (Dkt. No. 5) is DENIED as moot. The Clerk 6 is DIRECTED to close this case and to send Plaintiff a copy of this order. 7 DATED this 10th day of May 2021. A 8 9 10 John C. Coughenour 11 UNITED STATES DISTRICT JUDGE 12

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