Johnson v. United States of America et al

Filing 155

Order by Hon. James Donato granting 129 defendant's Motion to Dismiss. (jdlc1S, COURT STAFF) (Filed on 3/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ELLIS JOHNSON,

Case No. 13-cv-02405-JD

Plaintiff,
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v.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

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UNITED STATES OF AMERICA,

Re: Dkt. No. 129

Defendant.

United States District Court
Northern District of California

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INTRODUCTION
Pro se Plaintiff James Ellis Johnson is a United States veteran who receives medical care at

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the San Francisco Veterans Affairs Medical Center. This order addresses a claim for injunctive

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relief arising out of an Order of Behavioral Restriction (“OBR”) and a related case file flag that

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the Department of Veterans Affairs issued for allegedly disruptive and aggressive conduct by

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Johnson during visits for medical care. The United States has moved to dismiss the OBR and flag

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claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction under

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the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.

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(“FTCA”). The Court grants the motion with prejudice. As the Court has previously stated,

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Johnson’s claims against the United States for assault, battery, false imprisonment, and intentional

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infliction of emotional distress are unaffected and will proceed. See Dkt. Nos. 75, 119.

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BACKGROUND

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The main facts of Plaintiff’s case are summarized in two prior orders on motions to

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dismiss. Dkt. Nos. 75, 119. At issue in this motion is Plaintiff’s injunctive relief claim relating to

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an OBR entered by the Department of Veterans Affairs (“VA”) in August 2011 and extended in

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late 2013 to November 2015. See Dkt. No. 87 at 7-8. Plaintiff filed a timely administrative appeal

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of the OBR and behavioral flag on December 19, 2013. Id. at 10-13. Following an investigation,

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the VA denied Plaintiff’s appeal on June 27, 2014. Dkt. No. 129, Ex. D.

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All but one of Plaintiff’s claims pertaining to the OBR and related behavioral flag have
been dismissed with prejudice. Dkt. No. 75. The one remaining claim -- a request for injunctive

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relief to have the OBR and flag removed -- was dismissed for failure to exhaust administrative

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remedies with the VA. Id. at 16. Mr. Johnson was given leave to amend and did so on 1/23/14.

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Dkt. No. 83. The United States brought a motion to dismiss and the Court again dismissed the

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OBR and flag claim because Plaintiff had still not exhausted his remedies. Dkt. Nos. 86, 119.

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After exhausting his administrative remedies, Mr. Johnson filed a Second Amended Complaint

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(“SAC”) realleging the OBR and file flag claim, and seeking injunctive relief under the FTCA.

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United States District Court
Northern District of California

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Dkt. No. 126. The United States brought a motion to dismiss the complaint. Dkt. No. 129. The

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question now before the Court is whether Plaintiff successfully alleges this injunctive relief claim.

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DISCUSSION

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The United States contends that because it has not waived sovereign immunity, this Court

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lacks subject matter jurisdiction over Plaintiff’s claim. Under Federal Rule of Civil Procedure

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Rule 12(b)(1), a court should dismiss a complaint where there is no subject matter jurisdiction,

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including cases where the federal government is a defendant and there is no explicit waiver of

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sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980); Hodge v. Dalton, 107

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F.3d 705, 707 (9th Cir. 1997). As a sovereign, the United States is immune from suit, and can be

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sued only to the extent it has waived its sovereign immunity. Mitchell, 445 U.S. at 538. Any

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waiver of sovereign immunity must be unequivocally expressed. Block v. North Dakota, 461 U.S.

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273, 287 (1983). Absent an explicit waiver of sovereign immunity, this Court has no jurisdiction

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over actions against the federal government. Mitchell, 445 U.S. at 538.

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As an initial matter, the realleged OBR claim fails because injunctive relief is not available

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under the FTCA. The FTCA does not waive sovereign immunity for suits seeking injunctive

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relief, and there is no jurisdiction under the FTCA to award injunctive relief. See Westbay Steel,

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Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992) (holding that the FTCA only provides for

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monetary damages, not equitable relief); see also Moon v. Takisaki, 501 F.2d 389, 390 (9th Cir.

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1974). Consequently, Plaintiff’s claim is barred by sovereign immunity.

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The OBR claim also fails under the discretionary function exception to the FTCA. This

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exception to the FTCA’s waiver of immunity “bars claims ‘based upon the exercise or

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performance or the failure to exercise or perform a discretionary function or duty on the part of a

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federal agency or an employee of the Government, whether or not the discretion involved be

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abused.’” Soldana v. United States, 453 F.3d 1140, 1145 (9th Cir. 2006) (quoting 28 U.S.C. §

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2680(a)). A two-step analysis determines whether the exception applies. Id. The Court first looks

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to “whether the challenged actions involve ‘an element of judgment or choice.’” Id. (citation
omitted). If so, the Court then looks at whether the judgment was grounded in policy

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United States District Court
Northern District of California

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considerations or involved balancing of competing policy interests. Id. at 1145-46. If both factors

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are met, the exception applies and this Court lacks subject matter jurisdiction over the claim.

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GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002).

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Although the Ninth Circuit has recognized that the line between protected and unprotected

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conduct under the exception “can be difficult to apprehend,” Soldana, 453 F.3d at 1145, the Court

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has the benefit of a few signposts. If the challenged conduct is the product of a statutory or

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regulatory directive that leaves no room for anything but routine compliance, it is not

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discretionary. United States v. Gaubert, 499 U.S. 315, 324 (1991). And if the conduct involves

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simply applying safety considerations under an established policy “rather than the balancing of

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competing public policy considerations,” Soldana, 453 F.3d at 1145-46, the exception will not lie.

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In this case, the issuance of the OBR was discretionary conduct well within the exception.

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The VA issued the OBR under 38 C.F.R. § 17.107, which sets out the VA’s response to disruptive

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behavior of patients. Under this section, the VA is required to conduct a case-by-case evaluation

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of the facts and circumstances surrounding a particular patient’s behavioral issues. 38 C.F.R. §

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17.107(c). The VA is expressly charged with balancing the evaluation of the disruptive behavior

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against “the VA’s duty to provide good quality care, including care designed to reduce or

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otherwise clinically address the patient’s behavior.” Id. Based on this evaluation, the VA then

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determines whether the patient’s behavior “has jeopardized or could jeopardize the health or safety
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of other patients, VA staff, or guests at the facility or otherwise interfere with the delivery of safe

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medical care to another patient at the facility.” Id. at § 17.107(b)(1). After this particularized

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assessment, the VA may impose only “narrowly tailored” restrictions on the time, place and/or

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manner in which the patient receives treatment. Id. at § 17.107(b)(2). A patient may appeal

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conduct restrictions within the VA hierarchy. Id. at § 17.107(e). Even if restrictions are imposed

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and sustained, the VA is obligated to provide “the full range of needed medical care” to the

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patient. Id. at § 17.107 n.1.

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This regulation has all the hallmarks of discretionary decisionmaking. The regulation does
not dictate a particular course of action in response to disruptive behavior, but instead gives the
VA substantial discretion to evaluate the circumstances and decide on a response. It mandates the

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United States District Court
Northern District of California

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balancing of the competing policy goals of providing good care to the disruptive patient while

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ensuring that the care of other patients, and the safety of VA personnel, are not unduly

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compromised. Consequently, Johnson cannot challenge the OBR or the file flag under the FTCA.

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CONCLUSION

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The motion to dismiss is granted without leave to amend. See Schreiber Distrib. Co. v.

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ServWell Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986) (leave to amend should not be

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granted when “the allegation of other facts consistent with the challenged pleading could not

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possibly cure the deficiency”).

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IT IS SO ORDERED.

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Dated: March 2, 2015
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JAMES DONATO
United States District Judge

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