Elliott v. The Department of Veterens Affairs

Filing 5

ORDER GRANTING PERMISSION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 4/2/14. (cl, COURT STAFF) (Filed on 4/2/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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VANCE S. ELLIOT,
Plaintiff,
v.

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THE DEPARTMENT OF VETERANS
AFFAIRS,

No. C 14-80009 RS
ORDER GRANTING PERMISSION
TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Defendant.
____________________________________/

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In January 2014, plaintiff filed a complaint alleging slander against the Department of

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Veterans Affairs. In an order issued January 27, 2014, Elliot’s request to proceed in forma pauperis

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was denied because his complaint was largely illegible. (ECF No. 3). Plaintiff then lodged an

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amended complaint on February 4, 2014. (ECF No. 4). While parts of the new complaint are still

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difficult to read, the document is sufficiently legible to communicate the legal theory underpinning

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Elliot’s claim. Elliot, a veteran of the Korean War, met with a psychiatrist employed at a VA

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medical facility. According to the complaint, the VA psychiatrist diagnosed Elliot with

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schizophrenia. She then entered his diagnosis into the VA medical database, “from which it could

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be retrieved by anyone keying into his/her computer the last 4 digits of plaintiff’s Social Security

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Number[.]” (Compl. ¶ 3). This, Elliot claims, constitutes the tort of slander.

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When a federal employee acts within the scope of his or her employment and commits a tort,

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any relief for that tort must be sought against the United States under the Federal Tort Claims Act,

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28 U.S.C. §§ 2671, et seq. Before a claimant can assert an FTCA claim in federal court, he must

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first exhaust administrative remedies. § 2675(a); McNeil v. United States, 508 U.S. 106, 113

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(1993). In particular, he must present the claim “in writing to the appropriate Federal agency within

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two years after such claim accrues.” § 2401(b). If the agency denies the claim in writing, the

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claimant can then file an FTCA action in federal court. Id. He must do so, however, within six

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months of the administrative denial. Id.

First, the complaint pleads no facts indicating that Elliot exhausted his administrative remedies

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For the Northern District of California

Plaintiff has apparently failed to comply with the procedural requirements of the FTCA.

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United States District Court

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before the VA. If he presented a claim in writing to the agency, no legible portion of his complaint

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indicates as much. Second, even if Elliot filed an administrative claim with the VA, relief would be

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barred unless said claim was lodged by May 2012. Third, assuming he did file a timely complaint

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with the VA, this federal lawsuit would nonetheless be time-barred unless it was filed within six

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months of the VA’s written denial of his administrative claim. Because the complaint contains no

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suggestion that Elliot exhausted his administrative remedies in a timely fashion, it must be

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dismissed. See Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984).

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Plaintiff is granted leave to amend his complaint to the extent he can plead facts indicating

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that he satisfied the FTCA’s procedural requirements. Any amended complaint must be filed within

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thirty (30) days of the date of this order. In the meantime, Elliot’s request to proceed in forma

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pauperis is granted.

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IT IS SO ORDERED.

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Dated: 4/2/14
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:
Vance S. Elliott
640 Eddy Street, #219
San Francisco, CA 94109

DATED: 4/2/14

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/s/ Chambers Staff
Chambers of Judge Richard Seeborg

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For the Northern District of California

United States District Court

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