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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ANTHONY G. HERBERT, CASE NO. C17-1168JLR ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND Plaintiff, 11 v. 12 13 UNITED STATES OF AMERICA, Defendant. 14 15 16 17 18 19 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 20 GRANTS the United States’ motion to dismiss, DISMISSES Mr. Herbert’s complaint 21 without prejudice, and DENIES Mr. Herbert’s motion for leave to amend his complaint. 22 ORDER - 1 1 II. BACKGROUND 2 On July 10, 2017, Mr. Herbert filed a complaint in the Snohomish County 3 Superior Court alleging several counts of medical negligence against various employees 4 of the Community Health Clinic of Snohomish County (“CHC”). (Compl. (Dkt. # 1-1) at 5 2-3.) The action was removed to federal court (see Not. of Rem. (Dkt. # 1)), and, 6 pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted as the party 7 defendant (see Not. of Substitution (Dkt. # 4)). The action proceeded under the authority 8 of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). (See id. at 2.) 9 The United States then moved to dismiss the action for lack of subject matter 10 jurisdiction. (MTD at 1-2.) It argued that Mr. Herbert “had not administratively 11 exhausted his claim because he has not filed an administrative tort claim with [the United 12 States Department of Health and Human Services (“HHS”)].” (Id. at 3.) Accordingly, 13 his FTCA complaint must be dismissed. (Id. at 3 (citing McNeil v. United States, 508 14 U.S. 206 (1993).) Mr. Herbert filed a response, in which he stated that he was “unaware 15 that CHC was a federally funded clinic” and argued that his complaint should not be 16 dismissed because “he has alleged factual incidents that occurred at the CHC dental clinic 17 which caused him harm” and because “[d]ismissing this case would allow the defendants 18 to go free.” (MTD Resp. (Dkt. # 10) at 2.) 19 Mr. Herbert also filed a motion for leave to file a claim under the FTCA. (See 20 generally Mot.) He states that the court should “allow pro se litigants an opportunity to 21 cure deficiencies in their papers and filings when it is determined that there is a legitimate 22 non-frivolous case.” (See id. at 2.) Mr. Herbert recognizes that he must “first file a tort ORDER - 2 1 claim pursuant to the [f]ederal [r]ules,” but requests that the court grant leave to amend to 2 cure this deficiency. (Id. at 3.) 3 4 III. A. 5 ANALYSIS United States’ Motion to Dismiss The FTCA bars claimants from bringing suit in federal court until they have 6 exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113 7 (1993). Specifically, the FTCA provides: “An action shall not be instituted upon a claim 8 against the United States . . . unless the claimant shall have first presented the claim to the 9 appropriate Federal agency and his claim shall have been finally denied by the 10 agency . . . .” 28 U.S.C. § 2675(a). Failure of an agency to make final disposition of a 11 claim within six months is deemed to be a final denial of the claim. Id. “The 12 requirement of an administrative claim is jurisdictional.” Brady v. United States, 211 13 F.3d 499, 502 (9th Cir. 2000). “Because the requirement is jurisdictional, it must be 14 strictly adhered to.” Id. “This is particularly so since the FTCA waives sovereign 15 immunity.” Id. 16 Mr. Herbert did not file an administrative tort claim with HHS—the appropriate 17 agency in this case—before filing suit in court. (See Torres Decl. (Dkt. # 7) ¶¶ 2-4.) As 18 such, he failed to exhaust his administrative remedies. See 28 U.S.C. § 2675(a). For this 19 reason, the court GRANTS the United States’ motion to dismiss for lack of subject matter 20 jurisdiction. See Brady, 211 F.3d at 502. 21 // 22 // ORDER - 3 1 B. 2 Mr. Herbert’s Motion for Leave to Amend Mr. Herbert asks the court’s permission to cure the deficiency in his complaint. 3 (Mot. at 2-3.) The court construes Mr. Herbert’s motion as requesting leave to amend his 4 complaint. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). “In general, a court should 5 liberally allow a party to amend its pleading.” Sonoma Cty. Ass’n of Retired Emps. v. 6 Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013); see Fed. R. Civ. P. 15(a). Dismissal 7 without leave to amend is proper, however, if any amendment would be futile. Sonoma 8 Cty. Ass’n of Retired Emps., 708 F.3d at 1117 (“[D]ismissal without leave to amend is 9 improper unless it is clear . . . that the complaint could not be saved by any 10 amendment.”). Here, Mr. Herbert’s complaint cannot be saved by any amendment. See Robinson 11 12 v. Geithner, 359 F. App’x 726, 728-30 (9th Cir. 2009) (finding that leave to amend would 13 be futile because no amendment could cure the fact that the plaintiff had not exhausted 14 his administrative remedies). As discussed above, Mr. Herbert failed to exhaust his 15 administrative remedies; no amendment at this time would cure this deficiency. See 28 16 U.S.C. § 2675(a). Therefore, the court DENIES Mr. Herbert’s motion for leave. 17 // 18 // 19 // 20 // 21 // 22 // ORDER - 4 1 2 IV. CONCLUSION For the reasons stated above, the court GRANTS the United States’ motion to 3 dismiss (Dkt. # 6), DISMISSES the present action without prejudice, and DENIES Mr. 4 Herbert’s motion for leave to amend (Dkt. # 9). 5 Dated this 27th day of September, 2017. 6 7 A 8 JAMES L. ROBART United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 5

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