# Duarte v. VA Hospital

> District Court, E.D. California · June 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10053088

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10053088

## How later opinions describe it (automated extraction)

- affirming sua sponte dismissal for failure to state a claim

## Opinion text

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6 UNITED STATES DISTRICT COURT
7 FOR THE EASTERN DISTRICT OF CALIFORNIA
8
9 FRANCES G. DUARTE, Case No. 1:23-cv-00493-JLT-SKO
10 Plaintiff, FIRST SCREENING ORDER
11 v. ORDER FOR PLAINTIFF TO:
12 VA HOSPITAL, (1) FILE A FIRST AMENDED COMPLAINT;
13 Defendant. (2) NOTIFY THE COURT THAT SHE
WISHES TO STAND ON HER
14 COMPLAINT; OR
15 (3) FILE A NOTICE OF VOLUNTARY
DISMISSAL
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(Doc. 1)
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THIRTY-DAY DEADLINE
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20 Plaintiff Frances G. Duarte, proceeding pro se and in forma pauperis, filed a complaint on
21 April 3, 2023. (Doc. 1.) Upon review, the Court concludes that the complaint fails to state any
22 cognizable claims.
23 Plaintiff has the following options as to how to proceed. Plaintiff may file an amended
24 complaint, which the Court will screen in due course. Alternatively, Plaintiff may file a statement
25 with the Court stating that she wishes to stand on this complaint and have it reviewed by the
26 presiding district judge, in which case the Court will issue findings and recommendations to the
27 district judge consistent with this order. Lastly, Plaintiff may file a notice of voluntary dismissal.
28 If Plaintiff does not file anything, the Court will recommend that the case be dismissed.
1 I. SCREENING REQUIREMENT
2 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen
3 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty
4 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which
5 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
6 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district
7 court has discretion to dismiss in forma pauperis complaint); Barren v. Harrington, 152 F.3d 1193
8 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines
9 that a complaint fails to state a claim, leave to amend may be granted to the extent that the
10 deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130
11 (9th Cir. 2000) (en banc).
12 In determining whether a complaint fails to state a claim, the Court uses the same pleading
13 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and
14 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.
15 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of
16 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
17 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
18 complaint may be dismissed as a matter of law for failure to state a claim based on (1) the lack of
19 a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri
20 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must allege a minimum
21 factual and legal basis for each claim that is sufficient to give each defendant fair notice of what
22 the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of
23 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
24 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept
25 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94
26 (2007). The Court, however, need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S.
27 at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it
28 ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting
1 Twombly, 550 U.S. at 557).
2 II. SUMMARY OF PLAINTIFF’S COMPLAINT
3 Plaintiff prepared the complaint on a form titled “Complaint for a Civil Case.” (Doc. 1.) In
4 the caption of the complaint, Plaintiff lists the names of several plaintiffs. (Id. at 1.) Only Plaintiff’s
5 name appears throughout the rest of the complaint (see id. at 2, 4, 6), including a page containing
6 Plaintiff’s signature (id. at 6) and on the Civil Cover Sheet attached to the complaint (Doc 1-1).
7 The complaint names “VA Hospital” as the only defendant. (See Doc. 1 at 1–2.)
8 Under “Basis for Jurisdiction,” Plaintiff checked the box for “Federal question.” (Doc. 1 at
9 3; Doc. 1-1.) In the section of the complaint asking Plaintiff to list the specific federal statutes,
10 federal treaties, or provisions of the United States Constitution that are at issue in this case, Plaintiff
11 wrote a question mark. (Id. at 4.) The complaint notes that Plaintiff is a citizen of California and
12 the amount in controversy is $795,000. (Id. at 4–5; see also Doc. 1-1.)
13 On the Civil Cover Sheet, Plaintiff checked two boxes under the “Torts” heading as to the
14 nature of the suit: (1) “Personal Injury – Medical Malpractice,” and (2) “Health
15 Care/Pharmaceutical Personal Injury Product Liability.” (Doc. 1-1.) Plaintiff alleges the “VA
16 killed my husband,” and higher-ranking individuals agreed that hospital employees did not properly
17 take care of her husband. (Doc. 1 at 5.) Plaintiff further states “I do not know why my claim was
18 denied so am suing for malpractice – wrongful death.” (Id.) The complaint provides that someone
19 inserted a rectal tube that “punctured something,” causing Plaintiff’s husband to bleed out, and he
20 had large sores from not being turned. (Id. at 6.) Plaintiff states her husband was getting better.
21 (Id.) Plaintiff seeks justice for her husband and asserts that she and her children “need to be paid
22 for pain and suffering.” (Id. at 5–6.)
23 III. DISCUSSION
24 For the reasons discussed below, the Court finds that the complaint does not state any
25 cognizable claims. Plaintiff shall be provided with applicable legal standards and will be granted
26 an opportunity to file an amended complaint to correct the identified deficiencies.
27 ///
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1 A. Legal Standard
2 Plaintiff raises state law tort claims against a hospital associated with a federal agency.
3 Construing the complaint liberally, as it must, Erickson, 551 U.S. at 94, the Court interprets
4 Plaintiff’s allegations as claims of medical malpractice and negligence under the Federal Tort
5 Claims Act (“FTCA”) against the United States Department of Veterans Affairs (“VA”). See
6 Brumfield v. Dep’t of Veteran Affairs, No. 14–cv–04647–JSC, 2015 WL 294380, at *4 (N.D. Cal.
7 Jan. 22, 2015) (the FTCA “provides the exclusive remedy for torts committed by federal
8 employees”).
9 The FTCA gives district courts “exclusive jurisdiction of civil actions on claims against the
10 United States, for money damages . . . for injury or loss of property, or personal injury or death
11 caused by the negligent or wrongful act or omission of any employee of the Government while
12 acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). A plaintiff may
13 bring medical malpractice and negligence claims against VA medical professionals under the
14 FTCA. See Tunac v. United States, 897 F.3d 1197, 1205 (9th Cir. 2018); accord Manning v. United
15 States Dep’t of Veterans Affairs, No. 2:19-cv-00494 TLN AC (PS), 2019 WL 1437639, at *2 (E.D.
16 Cal. Apr. 1, 2019). For example, in Tunac, a late veteran’s spouse was permitted to proceed under
17 the FTCA on a claim that inadequate treatment by VA healthcare employees constituted medical
18 negligence that caused her husband’s death. Tunac, 897 F.3d at 1205.
19 However, “courts dismiss tort claims against federal agencies or the United States for lack
20 of subject matter jurisdiction where the plaintiff fails to allege exhaustion of administrative
21 remedies.” Brown v. Bode Constr., No. 16–cv–01148–JSC, 2016 WL 1588382, at *3 (N.D. Cal.
22 Apr. 20, 2016). Specifically, the FTCA requires that an injured party file an administrative claim
23 with the federal agency before filing a lawsuit. 28 U.S.C. § 2675 provides, in relevant part, that:

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An action shall not be instituted upon a claim against the United States for
25 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
26 Government while acting within the scope of his office or employment, unless
the claimant shall have first presented the claim to the appropriate Federal
27 agency and his claim shall have been finally denied by the agency in writing
and sent by certified or registered mail. The failure of an agency to make
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1 final disposition of a claim within six months after it is filed shall, at the
option of the claimant any time thereafter, be deemed a final denial of the
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claim for purposes of this section.
3 28 U.S.C. § 2675(a) (emphasis added); see also McNeil v. United States, 508 U.S. 106, 113 (1993)
4 (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their
5 administrative remedies.”).
6 “The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing
7 of a suit under the FTCA, . . . and, as such, should be affirmatively alleged in the complaint.”
8 Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); accord Jerves v. United States, 966 F.2d
9 517, 519 (9th Cir. 1992); Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). “A district
10 court may dismiss a complaint for failure to allege this jurisdictional prerequisite.” Gillespie, 629
11 F.2d at 640; see also Brady, 211 F.3d at 502 (“Because the requirement is jurisdictional, it ‘must
12 be strictly adhered to.’”). “However, the pleader should be given an opportunity to file an amended
13 complaint to cure such pleading defects.” Gillespie, 629 F.2d at 640.
14 “The FTCA provides that the United States shall be liable for tort claims ‘in the same
15 manner and to the same extent as a private individual under like circumstances.’” Gelazela v.
16 United States, No. 1:21-cv-01499-AWI-EPG (PC), 2022 WL 17368681, at *9 (E.D. Cal. Dec. 1,
17 2022) (citing United States v. Olson, 546 U.S. 43, 46 (2005); 28 U.S.C. § 2674). “To state a claim
18 for medical negligence or malpractice under California law, Plaintiff must establish ‘(1) the duty
19 of the professional to use such skill, prudence, and diligence as other members of his profession
20 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection
21 between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from
22 the professional's negligence.’” Gelazela, 2022 WL 17368681, at *10 (citing Sampson v. Ukiah
23 Valley Med. Ct., No. 15-cv-00160-WHO, 2017 WL 2834001, at *3 (N.D. Cal. June 30, 2017)).
24 B. Analysis
25 In its current form, the complaint does not allege a basis for federal question jurisdiction
26 and does not state a claim upon which relief can be granted because it does not allege compliance
27 with the FTCA. See, e.g., Manning, 2019 WL 1437639, at *2. Plaintiff makes a cursory reference
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1 to a claim being denied (see Doc. 1 at 5), but fails to allege facts indicating the timely filing of an
2 administrative claim with the VA.
3 As set forth above, Plaintiff may bring her tort claims for medical malpractice and
4 negligence under the FTCA. She must, however, allege facts that plausibly establish that she
5 exhausted her administrative remedies with the VA in order for this Court to have jurisdiction. See,
6 e.g., Kendall v. Dep’t of Veterans Affairs, 360 Fed. Appx. 902, 903 (9th Cir. 2009) (“The district
7 court properly dismissed the medical malpractice claim without prejudice for lack of subject matter
8 jurisdiction because [the plaintiff] did not allege in his complaint that he filed an administrative
9 claim with the VA before filing suit.”); Brumfield, 2015 WL 294380, at *4 (“the Court dismisses
10 the tort claims in the instant complaint for lack of subject matter jurisdiction; in particular, Plaintiffs
11 have failed to allege that [they] have properly exhausted their claims with the [VA].”). If she has
12 not yet exhausted her administrative remedies, “this lawsuit is premature and cannot go forward.”
13 Brumfield, 2015 WL 294380, at *5.
14 Plaintiff also lists the names of several plaintiffs in the caption of the complaint, but she
15 does not provide any further details regarding these additional plaintiffs. (Doc. 1 at 1.) Plaintiff
16 may only sue based on injuries she herself has suffered. See Brumfield, 2015 WL 294380, at *5.
17 She cannot sue “to rectify wrongs done to others,” including friends and family. Id.
18 C. Leave to Amend
19 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable
20 claims. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[t]he court should freely
21 give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with
22 time to file an amended complaint so she can provide additional factual allegations and cure the
23 pleading defects identified by the Court. Lopez, 203 F.3d at 1130; Gillespie, 629 F.2d at 640.
24 Plaintiff is granted leave to file an amended complaint within thirty days. She is cautioned
25 that an amended complaint supersedes all prior complaints filed in an action, Lacey v. Maricopa
26 Cty., 693 F.3d 896, 907 n.1 (9th Cir. 2012), and must be “complete in itself without reference to
27 the prior or superseded pleading,” Local Rule 220. Therefore, in an amended complaint, Plaintiff
28 must allege specific facts to plausibly establish that she complied with the FTCA and timely
1 exhausted administrative remedies with the VA. The amended complaint must also clearly identify
2 the other named plaintiffs in this case and how they have been injured.
3 The amended complaint should be clearly and boldly titled “First Amended Complaint,”
4 refer to the appropriate case number, and be an original signed under penalty of perjury. Although
5 Plaintiff has been given the opportunity to amend, it is not for the purpose of changing the nature
6 of this suit or adding unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no
7 “buckshot” complaints).
8 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if she
9 can allege compliance with the FTCA’s administrative claim requirement and appropriately
10 identify the other named plaintiffs in this action. If Plaintiff files an amended complaint, the Court
11 will screen that complaint in due course. Alternatively, Plaintiff may choose to stand on her
12 complaint subject to the Court issuing findings and recommendations to a district judge consistent
13 with this order. Lastly, Plaintiff may file a notice of voluntary dismissal.
14 IV. ORDER
15 Based on the foregoing, IT IS ORDERED that:
16 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either:
17 a. File a First Amended Complaint;
18 b. Notify the Court in writing that she wishes to stand on this complaint; or
19 c. File a notice of voluntary dismissal.
20 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended
21 complaint “First Amended Complaint” and refer to case number 1:23-cv-00493-
22 JLT-SKO.
23 3. Failure to comply with this order may result in a recommendation that this action be
24 dismissed.
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IT IS SO ORDERED.
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27 Dated: June 1, 2023 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10053088. Public record. Not legal advice.