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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RON STEPHEN REDHEAD, et al., Case No. 16-cv-00943-KAW Plaintiffs, 8 v. 9 10 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 11 12 13 On February 25, 2016, Plaintiffs Ron Stephen Redhead and Shana Howard filed a 14 complaint against Veterans Memorial Hospital, generally alleging that they were discriminated 15 against on various grounds because Ms. Howard was not permitted to accompany Mr. Redhead 16 during his cancer treatments. (Dkt. No. 1.) Mr. Redhead filed an application to proceed in forma 17 pauperis, which was granted. (Dkt. No. 9.) Ms. Howard did not file an IFP application. 18 On March 22, 2016, Mr. Redhead consented to the undersigned. On March 30, 2016, Mr. 19 Redhead filed an amended complaint, in which he is the only named plaintiff. (Dkt. No. 7.) On 20 April 4, 2016, Mr. Redhead filed another amendment, in which he is again the only named 21 plaintiff. (Dkt. No. 8.) Combined with her failure to file an IFP application, the Court interprets 22 these actions to be tantamount to a dismissal of Ms. Howard’s claims without prejudice, such that 23 she is no longer a party to the litigation. 24 As an initial matter, Veterans Memorial Hospital and its employees are part of the United 25 States Government, which requires that Plaintiff comply with the Federal Tort Claims Act 26 (“FTCA”) by filing an administrative claim prior to initiating a civil lawsuit. As the earliest date 27 of injury was February 2, 2016, Plaintiff has apparently not complied with the FTCA, as the six 28 month time period for the Agency to respond to an administrative claim has not elapsed. See 28 1 USC § 2675(a). Nor does the complaint allege that Plaintiff has complied with the FTCA, which 2 is required to state a tort claim against the United States. As a result, the original complaint and 3 all purported amendments are dismissed with leave to amend to allege compliance with the FTCA. 4 If Plaintiff has not filed an administrative claim, and completed the claims process, he cannot in 5 good faith allege that he has exhausted his administrative remedies. In that situation, Plaintiff 6 should dismiss his case without prejudice, because the Court would not have subject matter 7 jurisdiction, and so would be required to dismiss the case. In the event that Plaintiff needs to file 8 an administrative claim, he may still do so, 1 but must pursue and complete the claims process 9 prior to filing another lawsuit. Accordingly, Plaintiff’s complaint and other amendments are dismissed with leave to 10 United States District Court Northern District of California 11 amend to allege, if possible, that he has exhausted his administrative remedies under the Federal 12 Tort Claims Act on or before May 16, 2016. The future complaint should be titled the Third 13 Amended Complaint. Plaintiff is advised that he should not file “amendments” based on 14 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 15 16 complaint and all amendments, such that they will be treated as nonexistent. See Armstrong v. 17 Davis, 275 F.3d 849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by Johnson v. Cal., 543 18 U.S. 499 (2005). For that reason, Plaintiff shall properly identify the legal and factual bases for all 19 of his claims, free of any reference to any prior complaint. See King v. Atiyeh, 814 F.2d 565, 567 20 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 21 2012). In amending his complaint, Plaintiff may wish to contact the Federal Pro Bono Project’s 22 23 Help Desk for assistance—a free service for pro se litigants—by calling (415) 782-8982. Plaintiff 24 may also wish to consult a manual the court has adopted to assist pro se litigants in presenting 25 their case. This manual, and other free information for pro se litigants, is available online at: 26 1 27 28 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 useful. Regardless, a claim must be filed within two years of the date of injury. 2 1 2 Additionally, the case management conference scheduled for May 31, 2016 is continued to 3 August 9, 2016 at 1:30 PM in Courtroom 4, U.S. District Court, 1301 Clay Street, Oakland, 4 California. A joint case management conference statement is due on or before August 2, 2016. 5 6 IT IS SO ORDERED. Dated: April 14, 2016 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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