Hines v. VA Mather Medical Center

Filing 17

ORDER signed by Magistrate Judge Dennis M. Cota on 2/7/19 GRANTING 12 Motion to Dismiss, DISMISSING this action with prejudice. CASE CLOSED. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HINES,

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No. 2:17-CV-1634-DMC

Plaintiff,
v.

ORDER

VA MATHER MEDICAL CENTER,
Defendant.

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Plaintiff, who is proceeding pro se, brings this civil action. Pursuant to the written

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consent of all parties, this case is before the undersigned as the presiding judge for all purposes,

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including entry of final judgment. See 28 U.S.C. § 636(c); see also Doc. 11 (October 11, 2018,

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order assigning case to Magistrate Judge for all purposes). Pending before the court is

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defendant’s unopposed motion to dismiss (Doc. 12).

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I. PLAINTIFF’S ALLEGATIONS
This action proceeds on plaintiff’s original complaint (Doc. 1) against defendant

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VA Mather Medical Center. As the basis for this court’s jurisdiction, plaintiff alleges: “U.S.

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Dept. Veteran Affairs.” Id. at 4. For the statement of his claim, plaintiff alleges: “Involved in

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surgury [sic] medical malpractice.” Id. at 5. Attached to plaintiff’s complaint is a January 31,

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2017, letter from the U.S. Department of Veterans Affairs regarding plaintiff’s January 16, 2017,
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request for reconsideration of the “denial of the above-referenced matter on December 27, 2016.”

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Doc. 1, p. 7. Plaintiff does not allege when the surgery occurred.

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II. STANDARD FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of material

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fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must

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also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

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doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969). However, legally conclusory statements, not supported by actual factual allegations,

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need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se

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pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

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of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order

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to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The

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complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but

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it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

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Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement
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to relief.” Id. (quoting Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994). When the expiration of the statute of limitations is apparent on the fact of the complaint

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and any properly considered documents, the issue may be decided on a motion to dismiss. See

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Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).

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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

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III. DISCUSSION

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In its unopposed motion to dismiss, defendant argues the action must be dismissed

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for lack of jurisdiction because it was filed after expiration of the applicable statute of limitations.

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The court agrees.

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As defendant notes, it is undisputed this case involves a claim against the United

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States federal government because defendant is a federal entity. A limited waiver of the United

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States’ sovereign immunity is contained in the Federal Tort Claims Act (FTCA). See McRae v.

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Bairamian, 2018 WL 4071668, at *2 (E.D. Cal., Aug. 2, 2018). The terms of the United States’

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waiver of its sovereign immunity define the court’s jurisdiction to entertain the suit. See United

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States v. Sherwood, 312 U.S. 584, 586 (1941). For actions such as the current case involving the

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alleged negligence of government employees, the FTCA vests the district court with exclusive

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jurisdiction. See D.L. v. United States, 858, F.2d 1242, 1244 (9th Cir. 2017).
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Under the FTCA, before filing suit a plaintiff must exhaust administrative

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remedies. See 28 U.S.C. § 2675(a). Exhaustion is accomplished when the federal agency denies

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the plaintiff’s tort claim in writing or fails to do so within six months of the tort claim being filed.

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See id.; see also D.L, 858 F.3d at 1244. Under the FTCA, claims must be presented to the

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appropriate federal agency within two years of the alleged injury. See 28 U.S.C. § 2401(b); see

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also Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008). The two-year statute of

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limitations is subject to equitable tolling if the plaintiff can establish: (1) he has been diligently

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pursuing his rights; and (2) some extraordinary circumstance prevented timely filing. See

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Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750, 755 (2016); see also

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DeJohn v. U.S. Department of Agriculture, 2018 WL 4204788, at *3 (E.D. Cal., Sept. 4 2018). A

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pro se litigant’s lack of legal sophistication does not, by itself, constitute the required

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extraordinary circumstance. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

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In this case, plaintiff attaches to his complaint an agency letter referencing the

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denial of a tort claim in December 2016. Given this, and because plaintiff’s claim necessarily

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falls under the FTCA, the court may consider plaintiff’s FTCA claim, attached as Exhibit 1 to the

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declaration of Alison Richards, Esq., filed in support of defendant’s motion. See Lee, 250 F.3d at

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688 (court may consider documents upon which the complaint necessarily relies but which are

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not attached to the complaint). Exhibit 1 is plaintiff’s hand-written FTCA claim signed on

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October 18, 2016, regarding the surgery which is the subject of this lawsuit which occurred in

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October 2003. Because the two-year statute of limitations expired long before plaintiff even filed

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his FTCA claim in 2016 regarding the injury allegedly sustained in 2003, and because plaintiff

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has not presented any arguments suggesting the statute of limitations should be tolled, this court

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lacks jurisdiction to consider plaintiff’s case.

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IV. CONCLUSION

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Accordingly, IT IS HEREBY ORDRED that:

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Defendant’s unopposed motion to dismiss (Doc. 12) is granted;

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This action is dismissed with prejudice; and

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The Clerk of the Court is directed to enter judgment and close this

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file.

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Dated: February 7, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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