Herbert v. United States of America

Filing 12

ORDER granting United States' 6 Motion to Dismiss, dismissing action without prejudice and denying Plaintiff's 9 Motion for Leave to Amend. Signed by Judge James L. Robart. (PM) cc: plaintiff via the USPS

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANTHONY G. HERBERT,

CASE NO. C17-1168JLR
ORDER GRANTING MOTION
TO DISMISS WITHOUT LEAVE
TO AMEND

Plaintiff,

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v.
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UNITED STATES OF AMERICA,
Defendant.

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I.

INTRODUCTION

Before the court are (1) Defendant United States’ motion to dismiss Plaintiff
Anthony G. Herbert’s complaint (MTD (Dkt. # 6)); and (2) Mr. Herbert’s motion for
leave to file a Federal Tort Claim (Mot. (Dkt. # 9)). The court has considered the
motions, the balance of the record, and the applicable law. Being fully advised, the court

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GRANTS the United States’ motion to dismiss, DISMISSES Mr. Herbert’s complaint

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without prejudice, and DENIES Mr. Herbert’s motion for leave to amend his complaint.

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ORDER - 1

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II.

BACKGROUND

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On July 10, 2017, Mr. Herbert filed a complaint in the Snohomish County

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Superior Court alleging several counts of medical negligence against various employees

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of the Community Health Clinic of Snohomish County (“CHC”). (Compl. (Dkt. # 1-1) at

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2-3.) The action was removed to federal court (see Not. of Rem. (Dkt. # 1)), and,

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pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted as the party

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defendant (see Not. of Substitution (Dkt. # 4)). The action proceeded under the authority

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of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). (See id. at 2.)

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The United States then moved to dismiss the action for lack of subject matter

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jurisdiction. (MTD at 1-2.) It argued that Mr. Herbert “had not administratively

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exhausted his claim because he has not filed an administrative tort claim with [the United

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States Department of Health and Human Services (“HHS”)].” (Id. at 3.) Accordingly,

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his FTCA complaint must be dismissed. (Id. at 3 (citing McNeil v. United States, 508

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U.S. 206 (1993).) Mr. Herbert filed a response, in which he stated that he was “unaware

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that CHC was a federally funded clinic” and argued that his complaint should not be

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dismissed because “he has alleged factual incidents that occurred at the CHC dental clinic

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which caused him harm” and because “[d]ismissing this case would allow the defendants

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to go free.” (MTD Resp. (Dkt. # 10) at 2.)

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Mr. Herbert also filed a motion for leave to file a claim under the FTCA. (See

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generally Mot.) He states that the court should “allow pro se litigants an opportunity to

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cure deficiencies in their papers and filings when it is determined that there is a legitimate

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non-frivolous case.” (See id. at 2.) Mr. Herbert recognizes that he must “first file a tort

ORDER - 2

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claim pursuant to the [f]ederal [r]ules,” but requests that the court grant leave to amend to

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cure this deficiency. (Id. at 3.)

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III.
A.

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ANALYSIS

United States’ Motion to Dismiss
The FTCA bars claimants from bringing suit in federal court until they have

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exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113

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(1993). Specifically, the FTCA provides: “An action shall not be instituted upon a claim

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against the United States . . . unless the claimant shall have first presented the claim to the

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appropriate Federal agency and his claim shall have been finally denied by the

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agency . . . .” 28 U.S.C. § 2675(a). Failure of an agency to make final disposition of a

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claim within six months is deemed to be a final denial of the claim. Id. “The

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requirement of an administrative claim is jurisdictional.” Brady v. United States, 211

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F.3d 499, 502 (9th Cir. 2000). “Because the requirement is jurisdictional, it must be

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strictly adhered to.” Id. “This is particularly so since the FTCA waives sovereign

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immunity.” Id.

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Mr. Herbert did not file an administrative tort claim with HHS—the appropriate

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agency in this case—before filing suit in court. (See Torres Decl. (Dkt. # 7) ¶¶ 2-4.) As

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such, he failed to exhaust his administrative remedies. See 28 U.S.C. § 2675(a). For this

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reason, the court GRANTS the United States’ motion to dismiss for lack of subject matter

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jurisdiction. See Brady, 211 F.3d at 502.

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ORDER - 3

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B.

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Mr. Herbert’s Motion for Leave to Amend
Mr. Herbert asks the court’s permission to cure the deficiency in his complaint.

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(Mot. at 2-3.) The court construes Mr. Herbert’s motion as requesting leave to amend his

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complaint. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). “In general, a court should

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liberally allow a party to amend its pleading.” Sonoma Cty. Ass’n of Retired Emps. v.

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Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013); see Fed. R. Civ. P. 15(a). Dismissal

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without leave to amend is proper, however, if any amendment would be futile. Sonoma

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Cty. Ass’n of Retired Emps., 708 F.3d at 1117 (“[D]ismissal without leave to amend is

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improper unless it is clear . . . that the complaint could not be saved by any

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amendment.”).
Here, Mr. Herbert’s complaint cannot be saved by any amendment. See Robinson

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v. Geithner, 359 F. App’x 726, 728-30 (9th Cir. 2009) (finding that leave to amend would

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be futile because no amendment could cure the fact that the plaintiff had not exhausted

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his administrative remedies). As discussed above, Mr. Herbert failed to exhaust his

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administrative remedies; no amendment at this time would cure this deficiency. See 28

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U.S.C. § 2675(a). Therefore, the court DENIES Mr. Herbert’s motion for leave.

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ORDER - 4

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IV.

CONCLUSION

For the reasons stated above, the court GRANTS the United States’ motion to

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dismiss (Dkt. # 6), DISMISSES the present action without prejudice, and DENIES Mr.

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Herbert’s motion for leave to amend (Dkt. # 9).

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Dated this 27th day of September, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 5