Redhead et al v. Veterans Memorial Hospital

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended complaint due by 5/16/2016. Initial Case Management Conference continued to 8/9/2016 01:30 PM in Courtroom 4, 3rd Floor, Oakland. Joint Case Management Statement due by 8/2/2016. Signed by Judge Kandis A. Westmore on 4/14/2016. (kawlc1, COURT STAFF) (Filed on 4/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RON STEPHEN REDHEAD, et al.,

Case No. 16-cv-00943-KAW

Plaintiffs,
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v.
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VETERANS MEMORIAL HOSPITAL,
Defendant.

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND; ORDER
CONTINUING CASE MANAGEMENT
CONFERENCE TO 8/9/16
Re: Dkt. No. 1, 7, 8

United States District Court
Northern District of California

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On February 25, 2016, Plaintiffs Ron Stephen Redhead and Shana Howard filed a

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complaint against Veterans Memorial Hospital, generally alleging that they were discriminated

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against on various grounds because Ms. Howard was not permitted to accompany Mr. Redhead

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during his cancer treatments. (Dkt. No. 1.) Mr. Redhead filed an application to proceed in forma

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pauperis, which was granted. (Dkt. No. 9.) Ms. Howard did not file an IFP application.

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On March 22, 2016, Mr. Redhead consented to the undersigned. On March 30, 2016, Mr.

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Redhead filed an amended complaint, in which he is the only named plaintiff. (Dkt. No. 7.) On

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April 4, 2016, Mr. Redhead filed another amendment, in which he is again the only named

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plaintiff. (Dkt. No. 8.) Combined with her failure to file an IFP application, the Court interprets

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these actions to be tantamount to a dismissal of Ms. Howard’s claims without prejudice, such that

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she is no longer a party to the litigation.

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As an initial matter, Veterans Memorial Hospital and its employees are part of the United

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States Government, which requires that Plaintiff comply with the Federal Tort Claims Act

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(“FTCA”) by filing an administrative claim prior to initiating a civil lawsuit. As the earliest date

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of injury was February 2, 2016, Plaintiff has apparently not complied with the FTCA, as the six

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month time period for the Agency to respond to an administrative claim has not elapsed. See 28

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USC § 2675(a). Nor does the complaint allege that Plaintiff has complied with the FTCA, which

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is required to state a tort claim against the United States. As a result, the original complaint and

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all purported amendments are dismissed with leave to amend to allege compliance with the FTCA.

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If Plaintiff has not filed an administrative claim, and completed the claims process, he cannot in

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good faith allege that he has exhausted his administrative remedies. In that situation, Plaintiff

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should dismiss his case without prejudice, because the Court would not have subject matter

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jurisdiction, and so would be required to dismiss the case. In the event that Plaintiff needs to file

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an administrative claim, he may still do so, 1 but must pursue and complete the claims process

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prior to filing another lawsuit.
Accordingly, Plaintiff’s complaint and other amendments are dismissed with leave to

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United States District Court
Northern District of California

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amend to allege, if possible, that he has exhausted his administrative remedies under the Federal

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Tort Claims Act on or before May 16, 2016. The future complaint should be titled the Third

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Amended Complaint. Plaintiff is advised that he should not file “amendments” based on

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individual appointment visits, as all facts should be contained in a single pleading.
Plaintiff is on notice that the third amended complaint will supersede the original

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complaint and all amendments, such that they will be treated as nonexistent. See Armstrong v.

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Davis, 275 F.3d 849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by Johnson v. Cal., 543

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U.S. 499 (2005). For that reason, Plaintiff shall properly identify the legal and factual bases for all

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of his claims, free of any reference to any prior complaint. See King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir.

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2012).
In amending his complaint, Plaintiff may wish to contact the Federal Pro Bono Project’s

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Help Desk for assistance—a free service for pro se litigants—by calling [phone]. Plaintiff

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may also wish to consult a manual the court has adopted to assist pro se litigants in presenting

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their case. This manual, and other free information for pro se litigants, is available online at:

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If Plaintiff has not already done so, he must file an administrative claim. While a specific format
is not required, he may find Standard Form 95 (available online at
https://www.justice.gov/civil/documents-and-forms-0) useful. Regardless, a claim must be filed
within two years of the date of injury.
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http://cand.uscourts.gov/proselitigants.
Additionally, the case management conference scheduled for May 31, 2016 is continued to

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August 9, 2016 at 1:30 PM in Courtroom 4, U.S. District Court, 1301 Clay Street, Oakland,

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California. A joint case management conference statement is due on or before August 2, 2016.

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IT IS SO ORDERED.
Dated: April 14, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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