Holley v. Family Healthcare Network, et al.

Filing 10

ORDER GRANTING 4 Motion to Dismiss, signed by District Judge Dale A. Drozd on 10/24/2016. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK R. HOLLEY, SR.,

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Plaintiff,

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No. 1:16-cv-01321-DAD-EPG

v.

ORDER GRANTING MOTION TO DISMISS

UNITED STATES OF AMERICA,

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(Doc. No. 4)

Defendant.

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This action was originally filed by plaintiff, proceeding pro se, in Tulare County Superior

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Court and removed here by defendant pursuant to 42 U.S.C. § 233(c). (Doc. No. 1.) As part of

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the removal, the United States of America was substituted as defendant for the original

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defendants, Dr. Firoozi and Family Healthcare Network. (Doc. No. 2.) Defendant United States

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moved to dismiss on September 4, 2016, on the ground that this court lacks jurisdiction to hear

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the matter because it has not yet been administratively exhausted with the Department of Health

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and Human Services (“HHS”). (Doc. No. 4.) No opposition to the pending motion to dismiss

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was filed by plaintiff. A hearing was held with respect to the pending motion on October 18,

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2016. Jeffrey Lodge appeared on behalf of defendant. No appearance was made by plaintiff, or

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by anyone purporting to act on plaintiff’s behalf at the hearing. For the reasons set forth below,

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defendant’s motion to dismiss will be granted.

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Factual Background

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On April 18, 2016, plaintiff filed suit in Tulare County Superior Court on his own behalf,

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alleging as follows. Plaintiff had seen Dr. Firoozi on September 2, 2015 for a “deep cleaning”

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procedure. (Doc. No. 1 at 7, 9.) During the procedure, plaintiff heard a scrape and then a “loud

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crack inside his jaw.” (Doc. No. 1 at 9.) He subsequently developed pain and an infection,

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ultimately going to a hospital emergency room on September 6, 2015. (Doc. No. 1 at 9–11.) On

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September 9, 2015, plaintiff saw Dr. Firoozi again and was told that his wisdom tooth had broken

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in half. (Doc. No. 1 at 11.) Dr. Firoozi also told plaintiff he had missed a small crack in the

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wisdom tooth on a prior x-ray, and that he would not have performed the same procedure had he

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noticed the crack, because the procedure posed a risk of expanding the crack. (Doc. No. 1 at 12.)

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In his pro se complaint, plaintiff alleged various state law tort causes of action, including

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allegations of negligence, lack of informed consent, and dental malpractice. (Doc. No. 1 at 13–

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22.)

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Legal Standard and Analysis

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Federal courts are courts of limited jurisdiction, and possess only such jurisdiction as

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authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

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375, 377 (1994); Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084, 1091 (9th Cir.

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2014). The burden of establishing jurisdiction lies with the party asserting jurisdiction, and

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absent a demonstration otherwise, a cause of action is presumed to lie outside of that jurisdiction.

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Id. Questions of subject matter jurisdiction are properly raised under Rule 12(b)(1) of the Federal

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Rules of Civil Procedure. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); see also Edison v.

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United States, 822 F.3d 510, 517 (9th Cir. 2016). “In resolving a factual attack on jurisdiction,

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the district court may review evidence beyond the complaint without converting the motion to

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dismiss into a motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035,

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1039 (9th Cir. 2004); see also Edison, 822 F.3d at 517. Further, “[t]he court need not presume

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the truthfulness of the plaintiff’s allegations.” Id. (citing White, 227 F.3d at 1242); see also

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Edison, 822 F.3d at 517.

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The Federal Tort Claims Act, which waives the United States’ sovereign immunity for tort

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actions, allows claimants to sue the government in district court after they have sought resolution

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of their claim with the appropriate federal agency. Cadwalder v. United States, 45 F.3d 297, 300

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(9th Cir. 1995). This requirement to file an administrative claim is jurisdictional. Id. (citing

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Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)); see also Vacek v. U.S. Postal Service,

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447 F.3d 1248, 1250 (9th Cir. 2006), cert. denied 550 U.S. 906 (2007). Any waiver of sovereign

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immunity must be “strictly construed in favor of the United States.” Valadez-Lopez v. Chertoff,

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656 F.3d 851, 855 (9th Cir. 2011) (quoting Cadwalder, 45 F.3d at 300); see also Vacek, 447 F.3d

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at 1250.

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Here, in his complaint plaintiff alleges various tort claims related to dental malpractice.

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Plaintiff also alleges in his complaint that, “[o]n September 17, 2015, Plaintiff also submitted his

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complaint to the U.S. Department of Health & Human Services, Office of the General Counsel,

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General Law Division, 330 Independence Avenue, S.W., Rm. 4760 Mail Stop: Capitol Place,

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Washington, DC 20301.” (Doc. No. 1 at 6.) In support of their motion to dismiss, however,

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defendant submits an affidavit from Mary Christofferson, a staff attorney in HHS’s Office of

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General Counsel, who recounts that her office has a claims branch and maintains a computerized

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database of administrative tort claims filed with HHS. (Doc. No. 4-3 at 2.) Ms. Christofferson

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declares that she searched the database and found no record of an administrative claim filed by

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plaintiff in relation to Family Healthcare Network or Hamed Firoozi. (Doc. No. 4-3 at 2–3.)

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While the specific date of that search is not identified in the declaration, Ms. Christofferson

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signed her affidavit on July 12, 2016. (Doc. No. 4-3 at 3.) Defendant’s attorney represented at

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hearing on the pending motion that Ms. Christofferson completed her database search on the date

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her affidavit was signed. Defense counsel reported that he also notified plaintiff by letter that

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HHS had no record of plaintiff having exhausted the claims presented in this lawsuit

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administratively, but no response was received from plaintiff. (Doc. No. 4-2 at 1, 4.)

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While it is unclear whether the court has the discretion to stay the matter pending

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exhaustion, see Valadez-Lopez, 656 F.3d at 854–55; see also Kwai Fun Wong v. Beebe, 732 F.3d

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1030, 1054–55 (9th Cir. 2013) (Kozinski, C.J., concurring), defense counsel stated at hearing on
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the pending motion that the statute of limitations on plaintiff’s claims should not run until

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approximately September 2017. This comports with the court’s estimation, given the dates

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alleged by plaintiff in his complaint. See 28 U.S.C. § 2401(b) (“A tort claim against the United

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States shall be forever barred unless it is presented in writing to the appropriate Federal agency

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within two years after such claim accrues.”). Since it appears that plaintiff has sufficient time to

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administratively exhaust his claims prior to the running of the applicable statute of limitations, the

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court will dismiss this action without prejudice to its refiling following exhaustion rather than

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staying it and holding it in abeyance pending administrative exhaustion.

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Conclusion

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For these reasons, defendant’s motion to dismiss due to plaintiff’s failure to

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administratively exhaust his claims (Doc. No. 4) is granted. This case is dismissed without

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prejudice to its refiling following plaintiff’s administrative exhaustion of his claims. The Clerk of

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Court is directed to close this action.

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IT IS SO ORDERED.

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Dated:

October 24, 2016
UNITED STATES DISTRICT JUDGE

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