Saofaigaalii v. Tripler Army Medical Center et al
Filing
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ORDER DENYING MOTION TO DISMISS re 25 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/25/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Toatuga M. Saofaigaalii served by first class mail at the address of record on August 25, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TOATUGA M. SAOFAIGAALII,
Plaintiff,
vs.
UNITED STATES,
Defendant.
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CIVIL NO. 14-00455 SOM/KSC
ORDER DENYING MOTION TO
DISMISS
ORDER DENYING MOTION TO DISMISS
I.
INTRODUCTION.
The court has before it a motion to dismiss filed by
Defendants Tripler Army Medical Center (“Tripler”) and the
Department of the Army (collectively, “Defendants”).
25.
See ECF No.
Defendants seek dismissal of Plaintiff Toatuga M.
Saofaigaalii’s Complaint for lack of subject matter jurisdiction,
arguing that they cannot be sued under the Federal Tort Claims
Act (“FTCA”).
In the alternative, Defendants argue that the
Complaint must be dismissed for failure to state a claim upon
which relief can be granted because Saofaigaalii’s claims are
barred by the statute of limitations.
Defendants’ motion to
dismiss is denied.
II.
BACKGROUND.
Saofaigaalii is a United States veteran who resides in
Pago Pago, American Samoa.
See ECF No. 1-10, PageID # 22.
He
travels to Hawaii periodically to receive medical treatment at
Tripler.
See ECF No. 1, PageID #s 1-2.
On February 21, 2007, Saofaigaalii underwent surgery at
Tripler to remove kidney stones.
10, PageID # 23.
See id., PageID # 2; ECF No. 1-
He says the surgery was unsuccessful.
No. 1, PageID # 2.
See ECF
According to Saofaigaalii, he was asked to
consent to a second surgery, but refused because of pain in his
lower body.
See id.
Saofaigaalii alleges that his doctors then
told him that, absent his consent to a second surgery, he would
have to return to American Samoa with a catheter.
See id.
Saofaigaalii says he eventually consented to the second surgery,
which occured on March 12, 2007.
See id.
Saofaigaalii alleges that Tripler doctors performed his
second surgery negligently.
See id., PageID # 3.
He claims that
anesthesia was improperly administered and that a broken piece of
metal was left in his kidney or stomach.
See id.
Saofaigaalii
says that, since his surgery, he has suffered a bacterial
infection, chronic headaches, numbness and pain in his lower
extremities, lower back pain, stress, impotency, painful
urination, difficulty sleeping, and nightmares.
See id.
On September 26, 2007, Saofaigaalii filed a claim for
disability compensation with the Honolulu Regional Office of the
Department of Veterans Affairs (the “VA”), pursuant to 38 U.S.C.
§ 1151.
See ECF No. 1-15, PageID # 32.
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In his statement in
support of that claim, Saofaigaalii described suffering from
headaches, numbness and pain in his lower extremities, lower back
pain, and a bacterial infection.
See id.
On March 21, 2008, the VA denied Saofaigaalii’s request
for disability compensation.
See ECF No. 1-19, PageID # 40.
The
VA stated that it was denying Saofaigaalii’s request because
Tripler is “not considered to be a VA facility for the purposes
of 38 U.S.C. § 1151,” and Saofaigaalii’s injuries, therefore,
“were not actually the result of VA care.”
Id., PageID # 41.
Saofaigaalii appears to have appealed the VA’s
decision, and that appeal appears to have been denied.
See ECF
No. 1-12, PageID # 27.
On October 7, 2010, Saofaigaalii wrote to Brigadier
General Steve Jones of the Pacific Regional Medical Command,
requesting resolution of his VA claim.
See ECF No. 1-10, PageID
# 25.
Saofaigaalii appears to allege that he filed a Claim
for Damage, Injury, or Death (Standard Form 95) with the Pacific
Regional Medical Command on October 7, 2010.
PageID # 29.
See ECF No. 1-13,
Defendants contend that Saofaigaalii’s Form 95,
although dated October 7, 2010, was not received by Tripler until
September 30, 2013.
See ECF No. 25-1, PageID # 107.
On November 15, 2010, Saofaigaalii wrote a separate
letter to Brigadier General Jones, inquiring as to whether he had
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received Saofaigaalii’s previous letter and Form 95.
See ECF No.
1-14, PageID # 31.
On March 16, 2011, Saofaigaalii requested assistance
from the Honolulu Regional Office of the VA, referencing the
denial of his § 1151 claim by the VA and his claim dated October
7, 2010.
See ECF No. 1-9, PageID # 21.
On September 27, 2013, Saofaigaalii requested
settlement of his October 7, 2010, claim from Brigadier General
Dennis D. Doyle of the Pacific Regional Medical Command.
See ECF
No. 1-5, PageID # 15.
On October 23, 2013, a Medical Claims Judge Advocate of
the U.S. Army sent Saofaigaalii a letter acknowledging receipt of
his Form 95.
See ECF No. 1-6, PageID # 17.
The letter states
that the Medical Claims Office received Saofaigaalii’s Form 95 on
September 30, 2013.
See ECF No. 1-6, PageID # 17.
On March 14, 2014, the Tort Claims Division of the U.S.
Army Claims Service denied Saofaigaalii’s claim, stating that it
was barred by the two-year statute of limitations in 28 U.S.C.
§ 2401(b).
See ECF No. 1-3, PageID #s 10-11.
On April 28, 2014, Saofaigaalii requested
reconsideration of the denial of his claim.
PageID #s 12-14.
See ECF No. 1-4,
Reconsideration was denied on August 19, 2014.
See ECF No. 1-2, PageID #s 8-9.
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On October 9, 2014, Saofaigaalii filed his Complaint in
this court.
See ECF No. 1, PageID # 1.
Saofaigaalii asserts
various negligence claims against Defendants in relation to his
surgery at Tripler on March 12, 2007.
See id., PageID #s 1-7.
On June 23, 2015, Defendants moved to dismiss the
Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
III.
See ECF No. 25.
STANDARD.
A.
Rule 12(b)(1).
Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for lack of subject
matter jurisdiction.
An attack on subject matter jurisdiction
“may be facial or factual.”
Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004).
A facial attack asserts that
“the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
Id.
A factual
attack, on the other hand, “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.”
Id.
If the moving party makes a factual challenge, the
court may consider evidence beyond the complaint and “need not
presume the truthfulness of the plaintiff’s allegations.”
Id.
“Once the moving party has converted the motion to dismiss into a
factual motion by presenting affidavits or other evidence
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properly brought before the court, the party opposing the motion
must furnish affidavits or other evidence necessary to satisfy
its burden of establishing subject matter jurisdiction.”
Id.
(quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039
n.2 (9th Cir. 2003)) (internal quotation marks omitted).
If the moving party makes a facial challenge, as here,
the court’s inquiry is “confin[ed] . . . to allegations in the
complaint.”
Savage, 343 F.3d at 1040.
taken by the court as true.
Those allegations are
Courthouse News Serv. v. Planet, 750
F.3d 776, 780 (9th Cir. 2014).
B.
Rule 12(b)(6).
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of the complaint.
Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).
If matters outside the
pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc.,
110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
Courts may “consider certain
materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a
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motion for summary judgment.”
United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
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an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal,
556 U.S. at 678.
IV.
ANALYSIS.
A.
The United States May be Substituted For Tripler
and the Department of the Army.
Defendants say that the Complaint “must be dismissed
for lack of subject matter jurisdiction” because it names Tripler
and the Department of the Army as Defendants.
See ECF No. 25-1,
PageID # 111.
The FTCA, which provides the exclusive remedy for
tortious conduct by a United States agency or employee, does not
permit suit against an agency or employee directly.
The only
party that may be sued under the FTCA is the United States.
F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998).
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See
What Defendants ignore in arguing a lack of
jurisdiction is that claims naming a United States agency or
employee as a tortfeasor may be treated as claims against the
United States.
See Anderson v. U.S. Postal Serv., 761 F.2d 527,
528 (9th Cir. 1985) (“The district court properly treated
[Plaintiff’s] tort claim against the Postal Service as a suit
against the United States.”); Doe v. Hagee, 473 F. Supp. 2d 989,
995 (N.D. Cal. 2007) (“[A]n FTCA claim brought against the Marine
Corps or the Marines is properly treated as brought against the
United States.”).
There has been no allegation that Defendants
are not, in fact, agencies of the United States.
The United States is hereby substituted for Tripler and
the Department of the Army.
Saofaigaalii’s naming of agencies of
the United States, rather than the United States itself, does not
warrant dismissal of his Complaint on jurisdictional grounds.
B.
The United States Does Not Meet its Burden of
Demonstrating Entitlement to Dismissal Based on
the Statute of Limitations.
Under the FTCA, before filing a tort action against the
United States in court, an individual “must seek an
administrative resolution of her claim.”
States, 966 F.2d 517, 518 (9th Cir. 1992).
Jerves v. United
The FTCA provides:
An action shall not be instituted upon a
claim against the United States for money
damages for injury or loss of property or
personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting
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within the scope of his office or employment,
unless the claimant shall have first
presented the claim to the appropriate
Federal agency and his claim shall have been
finally denied by the agency in writing and
sent by certified or registered mail.
28 U.S.C. § 2675(a).
A claim is considered presented in
accordance with 28 U.S.C. § 2675(a) if a party files “(1) a
written statement sufficiently describing the injury to enable
the agency to begin its own investigation, and (2) a sum certain
damages claim.”
Blair v. IRS, 304 F.3d 861, 864 (9th Cir. 2002)
(quoting Warren v. U.S. Dep’t of Interior Bureau of Land Mgmt.,
724 F.2d 776, 780 (9th Cir. 1984)) (internal quotation marks
omitted).
The FTCA requires that a claim against the United
States be “presented in writing to the appropriate Federal agency
within two years after such claim accrues.”
28 U.S.C. § 2401.
A
claim accrues “when a plaintiff knows or has reason to know of
the injury which is the basis of his action.”
Hensley v. United
States, 531 F.3d 1052, 1056 (9th Cir. 2008) (internal quotation
marks omitted).
If a plaintiff fails to present his or her claim
within two years after accrual, the claim is “forever barred.”
Id.
The United States contends that Saofaigaalii failed to
present his claim within the two-year statute of limitations.
See ECF No. 25-1, PageID #s 111-16.
According to the United
States, Saofaigaalii’s claim accrued on March 12, 2007, the date
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of the surgery at issue, meaning that his claim had to be
presented by March 12, 2009, to have been timely filed.
See id.
at PageID # 112.
Defendants have not met their burden as movants of
demonstrating entitlement to dismissal based on the statute of
limitations.
Defendants assume that the date of accrual is the date
of Saofaigaalii’s surgery, but do not demonstrate that
Saofaigaalii should have immediately discovered the allegedly
resulting problems, much less that the problems had any
connection to the allegedly negligent performance of the surgery.
The documents submitted by Saofaigaalii indicate that he knew of
multiple spine punctures, chronic headaches, numbness and pain to
lower extremities, lower back pain, and a bacterial infection by
September 26, 2007, the date of his VA disability compensation
claim, and that he knew of a piece of metal left in his kidney by
February 4, 2008.
PageID # 38.
See ECF No. 1-15, PageID # 32; ECF No. 1-18,
Defendants do not demonstrate that these conditions
or any of the other conditions Saofaigaalii complains of (e.g.,
impotency, painful urination, emotional distress, inability to
sleep) are injuries Saofaigaalii knew or should have known of on
the date of his surgery.
In cases alleging medical malpractice, it is easy to
envision scenarios in which injuries caused by surgery do not
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manifest themselves until weeks, months, or even years after the
surgery.
Even if a person suffers from a condition following
surgery, that condition may initially be viewed as a natural part
of the recovery process, rather than an injury resulting from
negligence.
Claims involving medical malpractice do not accrue
until a plaintiff “knows of both the existence of an injury and
its cause.”
Hensley v. United States, 531 F.3d 1052, 1056 (9th
Cir. 2008).
The United States provides this court with no basis for
concluding that the date of accrual for Saofaigaalii’s claims is
the date of the surgery.
This court may not dismiss a complaint
for failure to state a claim “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.”
Terracom v. Valley Nat.
Bank, 49 F.3d 555, 558 (9th Cir. 1995) (internal quotation marks
omitted).
Saofaigaalii might have discovered his alleged
injuries considerably after his surgery, leaving open the
possibility that Saofaigaalii could prove facts entitling him to
relief notwithstanding any statute of limitations defense.
It is also unclear to this court that the United States
may rely on September 30, 2013, as the date Saofaigaalii
presented his claim.
It is true that Saofaigaalii may not rely
on his request for disability compensation from the VA as
adequate presentation of his claim.
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That request did not include
a sum certain damages claim, even if the request could be
interpreted as seeking redress for an injury sustained through
tortious conduct, rather than simply seeking compensation for a
disability.
However, Saofaigaalii attaches as Exhibit M to his
Complaint his Form 95, which included a sum certain and was dated
October 7, 2010.
See ECF No. 1-13, PageID # 29.
While the
United States says it did not receive that Form 95 until
September 30, 2013, this court, on a motion to dismiss, must take
Saofaigaalii’s allegations of material fact as true and construe
them in the light most favorable to him.
This court therefore
cannot conclude on the present record that Saofaigaalii’s claims
are time-barred.
V.
CONCLUSION.
Defendants’ motion to dismiss is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Saofaigaalii v. United States, Civ No. 14 00455 SOM/KSC; ORDER DENYING MOTION
TO DISMISS
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