Sotoa v. U.S. Department of Veterans Affairs et al

Filing 4

ORDER Granting 2 Motion to Proceed in forma pauperis; Dismissing Complaint for Failure to State a Claim; and Denying 3 Request for Appointment of Counsel. Plaintiff will have 45 days from the date of this Order to file an amended complaint. Signed by Judge Barry Ted Moskowitz on 9/23/2016. (All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RAPI L. SOTOA,

Case No.: 16cv1935
Plaintiff,

12
13

v.

14

U.S. DEPARTMENT OF
VETERANS AFFAIRS - LA JOLLA
MEDICAL CENTER, SAN DIEGO,

15
16

Defendant.

ORDER GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS; DISMISSING
COMPLAINT FOR FAILURE TO
STATE A CLAIM; AND
DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

17
18
19

On August 1, 2016, Plaintiff filed a Complaint in addition to a Motion to

20

Proceed In Forma Pauperis (“IFP Motion”) and a Request for Appointment of

21

Counsel. For the reasons discussed below, the IFP Motion is granted, the

22

Complaint is dismissed with leave to amend, and the Request for Appointment of

23

Counsel is denied without prejudice.

24
25

I.

Motion to Proceed IFP
Upon review of Plaintiff’s affidavit in support of his IFP Motion, the Court

26

finds that Plaintiff has made a sufficient showing of inability to pay the filing fees

27

required to prosecute this action. Accordingly, Plaintiff’s IFP Motion is

28

GRANTED.
1
16cv1935

1
2

II.

Failure to State a Claim
Although the Court will allow Plaintiff to proceed IFP, Plaintiff’s Complaint

3

must be dismissed for failure to state a claim. The Court is under a continuing

4

duty to dismiss an IFP case whenever the Court determines that the action “fails

5

to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

6

Here, the Complaint must be dismissed because it does not identify a party

7

defendant.

8
9

Plaintiff’s Complaint alleges that he was injured at the VA San Diego
Medical Center (the “VA Center”) when a nurse negligently allowed an

10

automated door to close on his right side, injuring his shoulder and neck. The

11

Complaint does not refer to the Federal Tort Claims Act (FTCA), 28 U.S.C. §

12

2671 et seq., or otherwise invoke the FTCA as the basis for Plaintiff’s claims.

13

However, attached to the Complaint are copies of an administrative claim he filed

14

with the U.S. Department of Veterans Affairs under the FTCA based on the same

15

incident. The Court may consider the documents attached as exhibits to a

16

complaint in deciding whether plaintiff has stated a plausible claim for relief. See,

17

e.g., Beauvoir v. Israel, 794 F.3d 244, 248 n.4 (2d Cir. 2015). Also, because

18

Plaintiff is proceeding in pro se, his pleadings are “held to less rigorous standards

19

than those drafted by attorneys.” Cripps v. Life Ins. Co. of North America, 980

20

F.2d 1261,1268 (9th Cir. 1992). Liberally interpreted, the Complaint, including its

21

attachments, invokes the FTCA as the statutory basis for Plaintiff’s negligence

22

claims.

23

Even so, Plaintiff has not yet succeeded in stating a claim on which relief

24

can be granted, because his Complaint does not name any party defendants. In

25

the caption of the Complaint, the area where the “Defendant(s)” are supposed to

26

be named has been left blank. See Fed. R. Civ. P. 10(a) (“[t]he title of the

27

complaint must name all the parties”). And although the body of the Complaint

28

states that Plaintiff has “a grievance against the Department of Veterans Affairs,”
2
16cv1935

1

it does not go so far as to allege that the Department of Veterans Affairs, or any

2

other person or entity, is a party defendant. “[F]ederal courts lack jurisdiction

3

over … unnamed parties, as a case has not been commenced with respect to

4

them.” Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir.

5

1989); accord, Loa-Herrera v. Trominski, 231 F.3d 984, 991 (5th Cir. 2000); see

6

Adams v. School Board, 53 F.R.D. 267, 268 (M.D. Pa. 1971) (where civil rights

7

complaint names only one party defendant in caption, only that party is the

8

defendant). Because the Complaint does not identify the party defendants,

9

Plaintiff has not yet stated a claim against anyone, so the Complaint must be

10

dismissed.

11

The Court notes that two of the documents filed at the same time as the

12

Complaint do name defendants, but the defendants differ on each document.

13

Plaintiff’s Request for Appointment of Counsel names three defendants: the

14

“U.S. Dept. of Veterans Affairs—La Jolla Medical Center, San Diego,” “Hazal

15

Tanga, Manager,” and “Nurse (name unknown).” His Civil Case Cover Sheet

16

appears to identify just one defendant, Hazal Tanga. If any of these are the

17

parties Plaintiff meant to name in the Complaint, they are not proper defendants

18

to his FTCA claim. Veterans’ medical facilities are operated by the Veterans

19

Health Administration, an administration within the Department of Veterans

20

Affairs, a federal agency. Federal agencies are generally immune from suit.

21

Loeffler v. Frank, 486 U.S. 549, 544 (1988). Under the FTCA, a claim against a

22

federal agency may be brought only against the United States.

23

28 U.S.C. § 2679(a). Therefore, it would be improper for Plaintiff to name the

24

Department of Veterans Affairs or the VA Center as defendants to his FTCA

25

claim. If he does intend to state a claim under the FTCA based on the alleged

26

negligence of either of these entities, the United States is the proper defendant.

27

With respect to the “Nurse (name unknown),” the Complaint alleges that

28

she was an employee of the VA Center. Suits against federal employees are
3
16cv1935

1

“deemed an action against the United States,” 28 U.S.C. § 2679(d)(1), and “any

2

other civil action or proceeding for money damages arising out of or relating to

3

the same subject matter against the employee . . . is precluded,” 28 U.S.C. §

4

2679(b)(1). Thus, to the extent Plaintiff wishes to assert an FTCA claim against

5

the nurse in her capacity as a VA Center employee, once again, the United

6

States is the proper defendant.

7

The Complaint does not allege any specific facts as to Hazal Tanga, or

8

anyone identified as a “Manager.” As currently pled, the Complaint fails to state

9

a claim for relief against this person. Plaintiff will need to add facts to his

10

Complaint explaining how Hazal Tanga, “Manager,” was negligent if he wishes to

11

base his FTCA claim on this person’s alleged wrongdoing. Also, to the extent

12

Plaintiff contends that this is another VA Center employee, the United States

13

would be the proper defendant.
Because Plaintiff’s Complaint does not identify any defendants, it will be

14
15

dismissed with leave to amend. 1 Plaintiff will have 45 days from the date of this

16
17

The Court also notes that, at least in its current form, Plaintiff’s Complaint may
be time-barred. Under 28 U.S.C. § 2401(b), an FTCA action must be filed “within
six months after the date of mailing, by certified or registered mail, of notice of
final denial of the claim by the agency to which it was presented.” 28 U.S.C. §
2401(b). It appears from the Complaint’s attachments that the VA issued a final
denial on October 8, 2014, and that Plaintiff thereafter filed a request for
reconsideration. Filing a request for reconsideration tolls the limitations period
for an additional six months, 28 C.F.R. § 14.9(b), but Plaintiff’s Complaint
appears to have been filed beyond even this additional period, because the VA
denied his request for reconsideration on December 15, 2015, and Plaintiff did
not file this action until August 1, 2016. However, the FTCA’s limitations period
can be extended by equitable tolling. United States v. Kwai Fun Wong, 135 S.
Ct. 1625, 1638 (2015). The Court cannot determine, based on Plaintiff’s current
allegations, whether he seeks to rely on equitable tolling. If he does, he should
add facts to the Complaint that explain the reasons why, through no fault of his
own, he was unable to file his Complaint with the Court within the required six
months.
1

18
19
20
21
22
23
24
25
26
27
28

4
16cv1935

1
2

order to file an amended complaint.
III.

Request for Appointment of Counsel

3

Plaintiff has filed a request for appointment of counsel.

4

There is no right to counsel in civil cases, and district courts may appoint

5

counsel only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d

6

1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an

7

evaluation of both ‘likelihood of success on the merits and the ability of the

8

plaintiff to articulate his claims pro se in light of the complexity of the legal issues

9

involved.’ Neither of these issues is dispositive and both must be viewed

10

together before reaching a decision.” Id.

11

At this point in time, the Court cannot say there is any likelihood of success

12

on the merits. Therefore, the Court DENIES without prejudice Plaintiff’s Request

13

for Appointment of Counsel.

14

IV.

Conclusion and Order

15

Based on the foregoing, the Court ORDERS as follows:

16

1) Plaintiff’s Motion to Proceed IFP is GRANTED;

17

2) Plaintiff’s Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff

18

will have 45 days from the date of this Order to file an amended

19

complaint; and

20
21
22
23

3) Plaintiff’s Plaintiff’s request for appointment of counsel is DENIED
without prejudice.
IT IS SO ORDERED:
Dated: September 23, 2016

24
25
26
27
28
5
16cv1935