Johnson v. United States

Filing 86

ORDER DENYING 83 Plaintiff's motion for an order forfeiting Defendant's right to file a summary judgment motion and that Defendant pay 20% of Plaintiff's medical bills not covered by Medicare. Signed by Judge Laurel Beeler on 10/13/2011. (lblc2, COURT STAFF) (Filed on 10/13/2011)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

Oakland Division
JAMES ELLIS JOHNSON,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Plaintiff,

13
14

v.
UNITED STATES OF AMERICA,

15
16
17

Defendant.

No. C 10-00647 LB
ORDER DENYING PLAINTIFF’S
MOTION FOR AN ORDER
FORFEITING DEFENDANT’S RIGHT
TO FILE A SUMMARY JUDGMENT
MOTION AND THAT DEFENDANT
PAY 20% OF PLAINTIFF’S
MEDICAL BILLS NOT COVERED BY
MEDICARE

_____________________________________/
Plaintiff James Johnson brought this medical malpractice action against defendant United States

18

(the “Government”) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. Complaint,

19

ECF No. 1.1 He alleges that he underwent surgery at the United States Department of Veterans

20

Affairs (“VA”) Medical Center in San Francisco, California on December 19, 2005 and was

21

discharged two days later. Id. ¶¶ 8-9. Two days was too soon, he says, and as a result, he suffered

22

injury. Id. ¶ 11.

23

Mr. Johnson has now filed a motion requesting that the court (1) “forfeit” the Government’s

24

right to file a motion for summary judgment and (2) order the Government to pay the 20% of his

25

medical bills that Medicare does not cover. Motion, ECF No. 83. In support of his motion, Mr.

26

Johnson contends that the Government has engaged in a conspiracy to prevent him from obtaining

27
28

1

Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
C 10-00647 LB

1

medical records that he plans to use with respect to an upcoming expert report.2 See id. The

2

Government has, according to Mr. Johnson, informed his doctors who are not affiliated with the VA

3

that it would not pay for his medical care outside of the VA system on a fee basis. See id at 2-4. As

4

a result, he has to pay for his “outside” medical treatment through Medicare, which only covers 80%

5

of the costs. Id at 2. In addition, the Government somehow has “undermined” his ability to get the

6

medical information he needs. Id. at 3.

7

As the Government points out in opposition, Mr. Johnson has failed to provide admissible facts

8

in support of his “conspiracy” claim or cite any law in support of the extraordinary relief he seeks.3

9

Opposition, ECF No. 84. Indeed, Mr. Johnson’s motion, which he signed under penalty of perjury,

83. Moreover, even if the Government no longer will pay for his “outside” medical care on a fee

12
For the Northern District of California

is replete with hearsay and unsubstantiated, conclusory statements. See, generally, Motion, ECF No.

11
UNITED STATES DISTRICT COURT

10

basis (although Mr. Johnson has submitted no evidence on this point), the court is at a loss to

13

understand how this would prevent Mr. Johnson from obtaining discovery.

14
15

Under the circumstances and the record before it, the court refuses to grant either of Mr.
Johnson’s requests. His motion is DENIED.

16

This disposes of ECF No. 83.

17

IT IS SO ORDERED.

18

Dated: October 13, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

19
20
21
22
23
2

24
25
26
27
28

Previously, this court continued the deadlines for this case because Mr. Johnson needed
additional time to conduct discovery. Order, ECF No. 80. Discovery is ongoing, and the current
expert discovery deadline is November 3, 2011. Id.
3

Either in lieu of or perhaps as a reply, Mr. Johnson filed a document containing brief
descriptions of various federal cases in which plaintiffs were awarded medical damages. Response,
ECF No. 85. None of these cases, though, relate to or support Mr. Johnson’s request that the court
deny the Government its right to file a motion for summary judgment or order the Government to
pay 20% of his “outside” medical bills.
C 10-00647 LB

2