Spicer v. United States Department of Veterans Affairs

Filing 3

SCREENING ORDER and REPORT AND RECOMMENDATION. IT IS ORDERED that 1 Plaintiff's Application for Leave to Proceed In Forma Pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court must file 1 -2 (pp. 7-92) Plaintiff� 39;s complaint.IT IS FURTHER ORDERED that 2 Plaintiff's motion for disclosure of complaint on CD-ROM is DENIED.IT IS RECOMMENDED that 1 -2 the complaint be DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. IT IS FURTHER RECOMMENDED that Plaintiff be given a deadline to file an amended complaint. See Order for details. Objections to R&R due by 8/14/2017. Signed by Magistrate Judge Carl W. Hoffman on 7/28/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN STANLEY SPICER,

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Plaintiff,
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vs.
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UNITED STATES DEPARTMENT OF
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VETERAN AFFAIRS,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-03025-JAD-CWH
SCREENING ORDER AND
REPORT AND
RECOMMENDATION

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Presently before the court is pro se Plaintiff Brian Stanley Spicer’s application to proceed in
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forma pauperis (ECF No. 1), filed on December 29, 2016. Also before the court is Plaintiff’s
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motion for disclosure of complaint on CD-ROM (ECF No. 3), filed on December 29, 2016.
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I.

IN FORMA PAUPERIS APPLICATION

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Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability
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to prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to proceed in
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forma pauperis will be granted.
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II.

SCREENING COMPLAINT

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Upon granting a request to proceed in forma pauperis, a court must screen the complaint
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under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims
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and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be
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granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for
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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d
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1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual
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matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only

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dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)

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(quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of material

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fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit

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P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although

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the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must

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provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is

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clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should

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be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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III.

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Background
Plaintiff’s complaint alleges negligence on the part of the Defendant, the Department of

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Veterans Affairs (“DVA”), related to complications arising from their treatment of Plaintiff’s

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gynecomastia. Plaintiff alleges that he was examined and diagnosed with gynecomastia by

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Defendant on August 19, 2014, which was followed by an unsuccessful surgical procedure on

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October 6, 2014. Plaintiff alleges that Defendant’s treatment of the gynecomastia involved various

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actions that were either inappropriate or improperly performed, including: the use of ultrasound

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assisted and power assisted liposuction during the surgery, the injection of hydromorphone, and

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failure to aspirate all of the fluid in Plaintiff’s breast. Plaintiff alleges that these actions lead to

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temporary and permanent injuries, including continued symptoms of gynecomastia, a “paroxysmal

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atrial fibrillation” suffered sixteen days after the surgery, and “trigger finger” in the index and

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middle fingers of both hands, which developed approximately five months after the surgery.

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Plaintiff now seeks damages in the amount of $1,042,958 under Nevada’s professional negligence

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statute, Nev. Rev. Stat. § 41A.

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IV.

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Analysis
Claims of medical malpractice against federally-funded health care facilities and their
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employees acting in the scope of their employment, as here, must be pursued against the United

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States under the Federal Tort Claims Act. See 42 U.S.C. § 233(g). Claims under the FTCA are

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governed by the substantive law of the state in which the claim arose. 28 U.S.C. § 1346(b)(1).

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Here, plaintiff’s claim arose in Nevada; therefore, Nevada law applies.

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However, a prerequisite to any action for professional negligence under NRS § 41A is
submission of an affidavit that:
1. Supports the allegations contained in the action;
2. Is submitted by a medical expert who practices or has practiced in an area that is
substantially similar to the type of practice engaged in at the time of the alleged
professional negligence;
3. Identifies by name, or describes by conduct, each provider of health care who is
alleged to be negligent; and
4. Sets forth factually a specific act or acts of alleged negligence separately as to
each defendant in simple, concise and direct terms.

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Nev. Rev. Stat. § 41A.017

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Failure to include a qualifying medical affidavit requires dismissal of the complaint without

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prejudice. Washoe Med. Ctr. V. Second Judicial Dist. Court of State of Nev. ex rel. Cty. of Washoe,

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148 P.3d 790, 794 (Nev. 2006).

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Here, Plaintiff has not included a medical affidavit from a medical expert who has practiced

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in an area substantially similar to the type of practice that Defendant was engaged in. Plaintiff does

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assert that he is a medical expert, and includes a copy of a diploma for an associate degree in

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“medical administrative assist” as support. However, Plaintiff does not provide any authority to

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suggest that a medical administrative assistant is a medical expert in the relevant area of medical

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practice. The court does not accept Plaintiff’s assertion that he is a medical expert. The court will

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therefore recommend dismissal of the complaint with leave to amend.

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If Plaintiff chooses to file an amended complaint, the document must be titled “Amended

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Complaint.” The amended complaint must contain a short and plain statement describing the

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underlying case, the defendant’s involvement in the case, and the approximate dates of its

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involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil Procedure adopt a

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flexible pleading standard, Plaintiff still must give a defendant fair notice of the Plaintiff’s claims

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against it and Plaintiff’s entitlement to relief.
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The amended complaint also must contain a short and plain statement of the grounds for the

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court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction, Plaintiff is advised that

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“[f]ederal district courts are courts of limited jurisdiction, possessing only that power authorized by

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Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir.

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2011) (quotation omitted). Federal district courts “have original jurisdiction of all civil actions

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arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal

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district courts have original jurisdiction over civil actions in diversity cases “where the matter in

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controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of

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different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship;

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each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v.

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Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

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Additionally, Plaintiff is advised that if he files an amended complaint, the original

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complaint no longer serves any function in this case. As such, the amended complaint must be

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complete in and of itself without reference to prior pleadings or other documents. The court cannot

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refer to a prior pleading or other documents to make Plaintiff’s amended complaint complete.

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IV.

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Plaintiff’s motion for disclosure of complaint on CD-ROM
Plaintiff motion for disclosure of complaint on CD-ROM (ECF No. 2) requests that “in

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addition to three original type written copies of my complaint, have three copies of my complaint

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disclosed and admitted on CD-ROM in its entirety.” It is not clear precisely what request Plaintiff

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makes here, but to the extent that he is asking for permission to submit documents to the court by

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CD-ROM, or have documents sent to him by CD-ROM, as an exception to Local Rule IA 10-1, the

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court finds no good cause for such a request, and the motion is denied.

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V.

Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma

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Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this

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action. Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security for fees or costs. This order

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granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint
(ECF No. 1-2, pp. 7-92).
IT IS FURTHER ORDERED that Plaintiff’s motion for disclosure of complaint on CDROM is (ECF No. 2) DENIED.

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IT IS RECOMMENDED that the complaint (ECF No. 1-2) be DISMISSED without

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prejudice for failure to state a claim upon which relief can be granted, with leave to amend.

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IT IS FURTHER RECOMMENDED that Plaintiff be given a deadline to file an amended
complaint.
DATED: July 28, 2017

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________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to

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file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit

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has also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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