Johnston v. United States of America et al

Filing 22

ORDER granting 20 Defendants' Motion to Dismiss. Signed by Judge Frederick J Martone on 7/13/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lester A. Johnston, Jr.,
Plaintiff,

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vs.

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United States of America, et al.,
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Defendants.
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No. CV-10-2578-PHX-FJM
ORDER

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We have before us a motion to dismiss from defendants United States of America,

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Carl T. Hayden VA-Hospital, Dr. Kreul, Dr. Aiello, Dr. Dolan, Dr. Mitchell, the Office of

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Regional Council Region 9, Department of Veterans Affairs, and General Counsel for the

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Department of Veterans Affairs (doc. 20). Defendants move to dismiss on the following

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grounds: (1) plaintiff fails to state a claim for medical malpractice under Arizona law, see

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A.R.S. § 12-563; (2) plaintiff has not filed the requisite affidavit regarding expert testimony,

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pursuant to A.R.S. § 12-2603(A); and (3) plaintiff has not stated a claim against defendant

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General Counsel’s Office.

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Defendants previously moved to dismiss this action (doc. 15), and plaintiff did not

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respond. We granted defendants’ motion, but gave plaintiff leave to amend his complaint

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to cure the deficiencies defendants identified (doc. 16). Plaintiff filed a new complaint (doc.

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19), and defendants renewed their motion to dismiss, asserting the same grounds for

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dismissal as in their previous motion, except that they now agree that we have subject matter

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jurisdiction. Once again, plaintiff has failed to respond.

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If an unrepresented party “does not serve and file the required answering memoranda

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. . . such non-compliance may be deemed a consent to the denial or granting of the motion

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and the Court may dispose of the motion summarily.” LRCiv 7.2(i). We consider plaintiff’s

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second failure to respond to be consent to the granting of defendants’ motion. Moreover,

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review of plaintiff’s amended complaint reveals that plaintiff has still not alleged the

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necessary elements of a medical malpractice claim (the standard of care, how the standards

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were violated, and proximate causation), filed the requisite affidavit on the necessity of

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expert testimony, or identified the legal basis of his claim against the General Counsel’s

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Office.

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Therefore, IT IS ORDERED GRANTING defendants’ motion to dismiss (doc. 20).

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DATED this 13th day of July, 2011.

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