Machart v. Clinica Sierra Vista, No. 1:2010cv01080 - Document 5 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss First Amended Complaint Without Leave To Amend signed by Magistrate Judge Jennifer L. Thurston on 7/19/2010. (Leon-Guerrero, A)
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Machart v. Clinica Sierra Vista Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KEITH MACHART, ) ) Plaintiff, ) ) vs. ) ) CLINICA SIERRA VISTA, ) ) Defendant. ) ) __________________________________ ) Case No. 1:10-cv-1080-OWW-JLT FINDINGS AND RECOMMENDATION DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND (Doc. 4) 17 18 I. First Amended Complaint 19 A. 20 On June 22, 2010, the Court granted Plaintiff’s motion to proceed in forma pauperis. Screening 21 (Doc. 3) The Court is required to review complaints filed IFP. 28 U.S.C. §1915A(a); 28 U.S.C. 22 1915(e). The Court must review the complaint and dismiss the action if it is frivolous or 23 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a 24 defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 25 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 26 1984)). If the Court determines that the complaint fails to state a claim, leave to amend may be 27 granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Dockets.Justia.com 1 Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc). 2 3 1. Federal Rule of Civil Procedure 8(a) Federal Rule of Civil Procedure 8(a) requires Plaintiff to provide, “a short and plain 4 statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and 5 the claim needs no new jurisdictional support”, “a short and plain statement of the claim showing 6 that the pleader is entitled to relief” allegations outlining the relief sought. Although the Federal 7 Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair notice and 8 state the elements of the plaintiff’s claim plainly and succinctly. Jones v. Community 9 Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). 10 11 12 B. Analysis 1. Summary of Allegations in Complaint Plaintiff alleges that he was a patient of defendant, Clinica Sierra Vista (“Clinica”) 13 beginning on June 1, 2007. (Doc. 4 at 1) He attended the clinic several times with symptoms 14 including severely swollen lymph nodes, difficulty swallowing and occasional difficulty in 15 breathing. Id. Employees of Clinica failed to properly diagnose and treat this condition and he 16 was told repeatedly that he had “a virus.” Id. at 1-2. Despite his worsening condition, the 17 Defendants failed to treat Plaintiff or arrange appropriate treatment for him. Id. Although 18 Plaintiff requested a referral to a specialist, employees of Clinica failed to arrange it. (Doc 4 at 2) 19 Finally, in May 2008, Plaintiff’s wife arranged for him to see a specialist through their insurance 20 company. Id. On June 18, 2008, the specialist performed a biopsy and diagnosed Plaintiff as 21 suffering from stage 4A “Squamous Cell Carcinoma.” Id. Plaintiff contends that the delay in 22 treatment by Clinica was below the standard of care, caused him pain and suffering and “possibly 23 permanent injury” and almost cost him his life Id. at 2-3. 24 Plaintiff alleges that he has sued the same defendant in Kern County Superior Court in 25 case number “CV268396DRL” but has now filed this action because the defendant’s attorney 26 told him that this is a “Federal Court matter.” (Doc 4 at 2) Review of the docket of Kern County 27 Superior Court case number S-1500-CV-268396, reveals that Plaintiff has sued Clinica, Arvin 1 Community Health Center and Aurora T. Cole-Reimer PAC, although none of the defendants 2 have filed a responsive pleading as yet.1 3 Plaintiff alleges that he has filed a federal tort claim and is awaiting response to the claim. 4 (Doc. 4 at 2) However, Plaintiff has attached a copy of a June 23, 2010 letter from the United 5 States Department of Justice related to his June 13, 2010 administrative tort claim. (Doc. 4, 6 attachment) The letter indicates that the claim was determined to be invalid and was being 7 returned to Plaintiff due to the fact that it “lacks a sum certain.” Id. 8 2. 9 10 The First Amended Complaint must be dismissed because Plaintiff has not yet exhausted his administrative remedy. Claims of medical malpractice against federally funded health care facilities and their 11 employees acting in the scope of their employment must be initiated under the Federal Tort 12 Claims Act (“FTCA”). To do this, a Plaintiff must have filed an administrative claim and 13 received a final determination of his claim. 42 U.S.C. § 233(g) (exclusive remedy against United 14 States for actions against federally funded clinics and employees acting in the scope of their 15 employment). Only after the administrative claim is denied or deemed denied (28 U.S.C. § 16 2675(a)) whichever occurs first, may the claimant file his action in federal court and then, he has 17 only six months in which to act. 28 U.S.C. § 2401(b). The purpose of the FTCA’s claims-filing 18 requirement is “‘to encourage administrative settlement of claims against the United States and 19 thereby to prevent an unnecessary burdening of the courts.’” Brady v. United States, 211 F.3d 20 499, 502 (9th Cir. 2000) quoting Jerves v. United States, 966 F.2d 517, 520 (9th Cir. 1992). 21 The requirement of administrative exhaustion is jurisdictional and cannot be waived 22 (Brady, 211 F.3d at 502) and strict compliance with its provisions is required. Cadwalder v. 23 United States, 45 F.3d 297, 300 (9th Cir. 1995); Vacek v. United States Postal Service, 447 F.3d 24 25 26 27 1 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The records of the Kern County Superior Court is a source whose accuracy cannot reasonably be questioned and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). 1 1248, 1250 (9th Cir. 2006) (“We have repeatedly held that the exhaustion requirement is 2 jurisdictional in nature and must be interpreted strictly”). When a civil action is filed before the 3 FTCA claim has been denied or is deemed denied due to the expiration of the six-month claim 4 review period, the court has no jurisdiction and the matter must be dismissed. McNeil v. United 5 States, 508 U.S. 106, 111-112 (1993); Jerves v. United States, 966 F.2d at 518519. 6 Here, Plaintiff filed his administrative claim but it was determined to be invalid and was 7 returned to him due to the failure of the claim to specify the amount of money that Plaintiff 8 sought. Even if the June13, 2010 claim was valid, this Court would not have had authority over 9 this civil action until after the claim was rejected or six months had passed from the time of the 10 filing of the claim. As it stands, no matter the seriousness of the allegations Plaintiff raises in his 11 First Amended Complaint, this Court has no authority to consider his case. Only compliance 12 with the FTCA “vests the federal district courts with exclusive jurisdiction over suits arising 13 from the negligence of Government employees.” Jerves v. United States, 966 F.2d 517, 518 (9th 14 Cir. 1992). Therefore, it is recommended that the Court DISMISS this case WITHOUT 15 LEAVE TO AMEND. 16 3. 17 Once again, the Complaint must be dismissed because it fails to allege facts that would give rise to Federal Court jurisdiction 18 As noted above, it appears that in his First Amended Complaint, Plaintiff is seeking to 19 impose liability on Clinica for medical malpractice. A medical malpractice claims, generally, 20 would not confer jurisdiction on this Court, absent invovlement by a federal agency or federally 21 funded heath care facility. (42 USC § 233(g) - (n)) Furthermore, Plaintiff’s allegation, that 22 Clinica’s attorney told him that this case is a “Federal Court matter,” is insufficient to invoke this 23 Court’s jurisdiction. 24 Ordinarily, the Court would grant Plaintiff leave to file an amended complaint to address 25 this deficiency. However, because First Amended Complaint makes clear that the Court lacks 26 the authority to decide this case, due to his failure to complete the FTCA claims process, granting 27 leave to amend would be futile. 1 II. Recommendation 2 Because Plaintiff has failed to complete the claims-filing procedures of the FTCA, the 3 Court recommends that Plaintiff’s First Amended Complaint be dismissed. Accordingly, it is 4 RECOMMENDED that, 5 1. 6 7 8 9 The First Amended Complaint be DISMISSED without leave to amend because the Court lacks jurisdiction in the matter; and 2. The Clerk of Court enter judgment for Defendants because this dismissal with prejudice would terminate the action in its entirety. These findings and recommendations are submitted to the United States District Court 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 11 of the Local Rules of Practice for the United States District Court, Eastern District of California. 12 Within 14 days after being served with a copy, any party may file written objections with the 13 Court and serve a copy on all parties. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” The Court will then review the Magistrate 15 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(10(C). Plaintiff is advised that his failure to file 16 objections within the specified time may waive the right to appeal the District Court’s order. 17 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: July 19, 2010 9j7khi 21 22 23 24 25 26 27 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
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