Freeman v. United States

Filing 91

ORDER by Judge Vince Chhabria granting 73 Motion to Dismiss; denying 90 Motion to file a surreply (knm, COURT STAFF) (Filed on 6/26/2014)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6

WELBORN FREEMAN,

Case No. 13-cv-02421-VC

Plaintiff,
7
v.

ORDER GRANTING MOTION TO
DISMISS WITH PREJUDICE

8
9

UNITED STATES, et al.,

Re: Dkt. No. 73

Defendants.
10

United States District Court
Northern District of California

11
12

Welborn Freeman has sued the United States and various medical providers for harm he

13

suffered in connection with his heart surgery at the San Francisco VA Medical Center. He has

14

filed a second amended complaint after Judge Orrick, who was previously assigned to the case,

15

dismissed the first amended complaint.

16

The defendants concede that Freeman should be allowed to pursue his negligence and

17

medical malpractice claims against the United States. However, they move to dismiss the

18

negligence and malpractice claims against the individual defendants and to dismiss the remainder

19

of Freeman's claims against all defendants. The motion is granted. The dismissal is with

20

prejudice, which means that Freeman is not allowed to attempt to amend his complaint again to

21

bolster these dismissed claims. Freeman's motion to file a surreply is denied, because the motion

22

provides no indication that it would further assist the Court in adjudicating the motion to dismiss.

23

The reasons for the dismissal are as follows:

24

1. Freeman continues to pursue claims for negligence and malpractice against the

25

individual defendants. However, Judge Orrick, in a prior order, dismissed these claims with

26

prejudice. See Docket No. 67.

27

28

2. Freeman also continues to pursue claims for intentional infliction of emotional distress,
which Judge Orrick previously dismissed with leave to amend. But the second amended

1

complaint does not satisfy the standards Judge Orrick set forth for pleading a claim for intentional

2

infliction of emotional distress.

3

3. Freeman also continues to pursue his claim for racial discrimination in violation of

4

California's Unruh Act, which Judge Orrick also had dismissed with leave to amend. But the

5

second amended complaint does not add any factual allegations that would give rise to an Unruh

6

Act claim based on the standards set forth by Judge Orrick.

7

4. Freeman also continues to pursue his Bivens claims against the individual defendants

8

for violating his First and Fifth Amendment rights. However, Judge Orrick set forth the standards

9

for stating a First Amendment claim in his prior order, and the second amended complaint does
not satisfy those standards. And, although the second amended complaint mentions the Fifth

11
United States District Court
Northern District of California

10

Amendment, it does not include allegations explaining how anyone violated the Fifth Amendment

12

(at least beyond the allegations pertinent to the claim for intentional infliction of emotional

13

distress, which, as discussed above, fail to state a claim).

14

5. Freeman has added a claim for violation of California's Bane Act, but as discussed

15

above, he has not successfully alleged that any of the defendants violated his constitutional rights.

16

Similarly, he has not successfully alleged that any of the defendants interfered with his exercise of

17

constitutional rights through threats or coercion.

18

Based on the number of attempts Freeman has made to assert claims other than negligence

19

or medical malpractice and the detail he has already included in his complaints, it is clear that any

20

further attempt to amend the complaint would be futile. Therefore, all of Freeman's claims, except

21

for the negligence and malpractice claims against the United States, are dismissed with prejudice.

22

This means that if Freeman wishes to pursue this lawsuit, he must pursue only the negligence and

23

malpractice claims against the United States.

24
25

26
27

IT IS SO ORDERED.
Dated: June 24, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

28
2

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

WELBORN FREEMAN,

Case No. 13-cv-02421-VC

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

9
10

UNITED STATES, et al.,
Defendants.

United States District Court
Northern District of California

11
12

13
14

15

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 6/24/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

16
17

Welborn Freeman
276 Lee Street #101
Oakland, CA 94610

18
19
20

Dated: 6/26/2014

21
22

Richard W. Wieking
Clerk, United States District Court

23
24
25

26

By:________________________
Kristen Melen, Deputy Clerk to the
Honorable VINCE CHHABRIA

27

28
3