Wiens v. US Veterans Hospital et al

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/8/17 Recommending that Plaintiff's 8/11/17 Application to proceed IFP 2 be denied; Plaintiff's 8/11/17 Complaint 1 be dismissed without prejudice; and This Action be dismissed. These Findings and Recommendations are submitted to U.S. District Judge Morrison C. England, Jr. Objections to these F&Rs due within fourteen (14) days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID KAY WIENS,

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Plaintiff,

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No. 2:17-cv-1672 MCE DB PS

v.

FINDINGS AND RECOMMENDATIONS

UNITED STATES OF AMERICA
VETERANS HOSPITAL,

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Defendant.

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Plaintiff, David Wiens, is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending

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before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.) The complaint asserts that an employee of the defendant

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improperly extracted plaintiff’s tooth.
The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated

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below, the undersigned will recommend that plaintiff’s application to proceed in forma pauperis

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be denied and that plaintiff’s complaint be dismissed without leave to amend.

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I.

Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. §

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1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis

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status does not complete the inquiry required by the statute. “‘A district court may deny leave to

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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that

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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see

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also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the

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district court did not abuse its discretion by denying McGee’s request to proceed IFP because it

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appears from the face of the amended complaint that McGee’s action is frivolous or without

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merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court

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to examine any application for leave to proceed in forma pauperis to determine whether the

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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

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bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).
II.

Plaintiff’s Complaint
It appears from plaintiff’s filing that this court currently lacks subject matter jurisdiction

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over this action. In this regard, the complaint alleges that the “VA HOSP. DENTAL DEPT

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IMPROPERLY EXTRACTED” plaintiff’s tooth. (Compl. (ECF No. 1) at 8.) An action based on

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the negligent or wrongful conduct of a government employee must be brought against the United

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States as a claim pursuant to the Federal Tort Claims Act, (“FTCA”), 28 U.S.C. §§ 2671-2680.

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See also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“the United States

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is the only proper party defendant in an FTCA action”).

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However, “a FTCA action ‘shall not be instituted’ against the United States unless the

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claimant first presents his claim to the ‘appropriate federal agency’ and the claim is denied.”

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Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir. 1996) (quoting Meridian Int’l Logistics, Inc. v.

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United States, 939 F.2d 740, 743 (9th Cir. 1991)). The requirement is jurisdictional and “must be

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strictly adhered to.” Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992). In this regard,

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when the plaintiff fails to exhaust administrative remedies prior to filing suit, a FTCA action may

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not be maintained. McNeil v. United States, 508 U.S. 106 (1993).

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Here, attached to plaintiff’s complaint is a letter dated April 5, 2017, from the U.S.

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Department of Veterans Affairs, (“VA”), acknowledging receipt of plaintiff’s FTCA claim. (ECF

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No. 1 at 19.) The letter explains that the “VA has six months to consider a claim before” plaintiff

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has “the option to file suit in U.S. District Court.” (Id. (citing 28 U.S.C. § 2675)). Plaintiff filed
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this action on August 11, 2017, less than six months after the VA received his claim. (ECF No.

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1.) Moreover, on October 3, 2017, plaintiff filed a status report. That filing included an October

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3, 2017 letter from the VA finding “no negligent or wrongful act on the part of an employee” of

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the VA, and explaining that plaintiff could now “file suit directly under the FTCA . . . . in a

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Federal district court.” (ECF No. 3 at 6-7.)

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A plaintiff cannot bring a FTCA claim prematurely and later amend the claim after

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exhausting administrative remedies because the district court lacks jurisdiction over a FTCA

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claim that is filed before the exhaustion requirement of § 2675(a) is satisfied. See Duplan v.

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Harper, 188 F.3d 1195, 1199 (10th Cir. 1999); Sparrow v. U.S. Postal Service, 825 F.Supp. 252,

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254-255 (E.D. Cal. 1993).

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Accordingly, for the reasons stated above, plaintiff’s complaint should be dismissed for

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lack of jurisdiction.

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III.

Leave to Amend

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The undersigned has carefully considered whether plaintiff may amend the complaint to

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state a claim over which the court would have jurisdiction. “Valid reasons for denying leave to

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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.

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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake

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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that

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while leave to amend shall be freely given, the court does not have to allow futile amendments).

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“Because § 2675(a) of the FTCA requires that an administrative claim be finalized at the

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time the complaint is filed, plaintiff’s complaint cannot be cured through amendment, but instead,

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plaintiff must file a new suit.” Sparrow, 825 F.Supp. at 255. Accordingly, the undersigned finds

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that it would be futile to grant plaintiff leave to amend in this case.

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CONCLUSION

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Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s August 11, 2017 application to proceed in forma pauperis (ECF No. 2) be

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denied;

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2. Plaintiff’s August 11, 2017 complaint (ECF No. 1) be dismissed without prejudice; and

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3. This action be dismissed.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiffs may file written

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 8, 2017

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DLB:6
DB/orders/orders.pro se/wiens1672.ifp.den.f&rs

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