Johnson v. United States

Filing 89

ORDER re: 88 Plaintiff's reply brief. Signed by Judge Laurel Beeler on 11/14/2011. (lblc2, COURT STAFF) (Filed on 11/14/2011) (Additional attachment(s) added on 11/14/2011: # 1 Certificate/Proof of Service) (ls, COURT STAFF).

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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(s), v. No. C 10-00647 LB ORDER RE: PLAINTIFF’S REPLY BRIEF 13 UNITED STATES, 14 15 16 Defendant(s). _____________________________________/ Pro se plaintiff James Johnson brought this medical malpractice action against defendant United 17 States (the “Government”) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. 18 Complaint, ECF No. 1.1 On September 16, 2011, Mr. Johnson filed a motion requesting that the 19 court (1) “forfeit” the Government’s right to file a motion for summary judgment and (2) order the 20 Government to pay the 20% of his medical bills that Medicare does not cover. Motion, ECF No. 83. 21 Under Civil Local Rule 7-3, “[a]ny opposition to a motion must be served and filed not more than 14 22 days after the motion is served and filed.” Civ. L.R. 7-3(a). And, “[a]ny reply to an opposition must 23 be served and filed by the moving party not more than 7 days after the opposition is served and 24 filed.” Civ. L.R. 7-3(c).2 In addition, in cases that are not subject to electronic filing – such as this 25 26 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. 2 This District’s civil local rules were amended effective September 8, 2011. Prior to that date, an opposition brief must have been served and filed “not less than 21 days before the hearing C 10-00647 LB 1 one, as Mr. Johnson is proceeding pro se – “[i]f the serving party elects to send the pleading or paper 2 by mail, 3 days are added to the time in which any party must respond, as permitted by Fed. R. Civ. 3 P. 6(d).” Civ. L. R. 5-5(a). 4 Mr. Johnson filed his motion on September 16, 2011, so the Government’s opposition was due 5 by September 30, 2011. See Civ. L.R. 7-3(a); see also Fed. R. Civ. P. 6(a)(1) (“When the period is 6 stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) 7 count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the 8 last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues 9 to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”). The ECF No. 84 at 2. Accordingly, Mr. Johnson’s reply was due by October 10, 2011 (7 days after the 12 For the Northern District of California Government timely filed its opposition and served it on Mr. Johnson by first-class mail. Opposition, 11 UNITED STATES DISTRICT COURT 10 Government filed its opposition, plus 3 additional days). See Civ. L.R. 7-3(c); see also Fed. R. Civ. 13 P. 6(a)(1).3 14 On October 5, 2011, Mr. Johnson filed “Plaintiff James Ellis Johnson’s Associated Cases,” 15 which contains brief factual descriptions of several federal tort cases and the courts’ respective 16 decisions. Associated Cases, ECF No. 85. He did not file any other document by the reply deadline 17 of October 10, 2011. 18 On October 13, 2011, upon consideration of Mr. Johnson’s motion and associated cases and the 19 Government’s opposition, the court denied Mr. Johnson’s motion. Order, ECF No. 86; see also id. 20 at 2 n.3 (because it was the only document Mr. Johnson filed after the Government’s opposition but 21 before the October 10, 2011 reply deadline, the court considered his associated cases “[e]ither in lieu 22 of or perhaps as a reply” and determined that the motion was ripe for determination). 23 24 25 26 date,” and a reply brief must have been served and filed “not less than 14 days before the hearing date.” Civ. L. R. 7-3(a), (c) [old rule]. Here, Mr. Johnson filed his motion after the revised Civil Local Rules took effect. 3 27 28 Mr. Johnson contends that his reply brief was not due until October 19, 2011. Amended Reply, ECF No. 88 at 3. The court, though, is unclear how he arrived at this date, and he did not explain his reasoning in this regard. See id. Nevertheless, as the court explained above, Mr. Johnson’s reply deadline was October 10, 2011. C 10-00647 LB 2 1 After receiving the court’s October 13, 2011 order, Mr. Johnson filed an untimely reply brief. 2 Amended Reply, ECF No. 88. In it, Mr. Johnson requests that the court vacate its October 13, 2011 3 order and, instead, rule in favor of his motion. See id. Although his reply was filed late, the court 4 addresses it here. 5 6 7 8 9 First, Mr. Johnson argues that the court mischaracterized the factual allegations in his complaint. Id. at 1-3. In its October 13, 2011 order, the court stated: Plaintiff James Johnson brought this medical malpractice action against defendant United States (the “Government”) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. Complaint, ECF No. 1. He alleges that he underwent surgery at the United States Department of Veterans Affairs (“VA”) Medical Center in San Francisco, California on December 19, 2005 and was discharged two days later. Id. ¶¶ 8-9. Two days was too soon, he says, and as a result, he suffered injury. Id. ¶ 11. 10 Order, ECF No. 86 at 1 (footnote omitted). Mr. Johnson points out that his complaint does not 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 allege that he was discharged after “two days.” Amended Reply, ECF No. 88 at 2. This is true. 13 Paragraphs 8 and 9 of his complaint allege in full: 14 15 16 8. On December 19, 2005, Johnson was admitted to the VA San Francisco for back surgery. The surgery was performed on the morning of December 20, 2005. Johnson was discharged from the hospital on December 21, 2005, 4:50 p.m., in violation of hospital policy and the normal standard of medical care. 17 18 9. The physicians, nurses, and other employees of the United States failed in their duty by prematurely kicking Johnson out of the hospital onto the streets less than 29 hours after major back surgery on December 21, 2005. 19 20 Complaint, ECF No. 1, ¶¶ 8-9. Simply to provide a brief introduction to its October 13, 2011 order, 21 the court summarized Mr. Johnson’s allegations and did not specify the number of hours between 22 Mr. Johnson’s surgery and his discharge. The court now clarifies that Mr. Johnson alleges that he 23 was discharged from the hospital “less than 29 hours after major back surgery.” Complaint, ECF 24 No. 1, ¶ 9; but see Further Joint Case Management Statement, ECF No. 45 at 2 n.1 (“The parties no 25 longer disagree on the date of plaintiff’s back surgery. The parties now agree that the surgery 26 occurred on December 19, 2005.”). 27 28 Second, Mr. Johnson argues that the court’s October 13, 2011 order was issued prematurely because he had until October 19, 2011 to file a reply. Amended Reply, ECF No. 88 at 3. As C 10-00647 LB 3 1 explained above, the deadline for Mr. Johnson to file a reply was October 10, 2011, and the court 2 considered all papers filed on or before that date before issuing its order. 3 Third, Mr. Johnson provides further argument in support of his original motion. Id. at 3-6. He 4 reiterates his claim that the Government has engaged in a conspiracy “to prevent [him] from getting 5 medical examinations and tests from doctors who would then write a report that would be used by 6 the doctor writing the expert report.” Id. at 3. But as in his motion, and as the court noted in its 7 October 13, 2011 order, Mr. Johnson has failed to provide admissible facts in support of his 8 conspiracy claim or cite any law in support of the extraordinary relief he seeks. His late-filed reply 9 brief does not remedy these problems. IT IS SO ORDERED. 12 For the Northern District of California Accordingly, the court refuses to vacate its October 13, 2011 order. 11 UNITED STATES DISTRICT COURT 10 Dated: November 14, 2011 _______________________________ LAUREL BEELER United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 10-00647 LB 4

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