Zakosky v. Department of Veterans Affairs

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 RICHARD ZAKOSKY, Case No.: 17cv1373-JAH (BGS)

11 Plaintiff,

ORDER DISMISSING PLAINTIFF’S

12 v. THIRD AMENDED COMPLAINT

PURSUANT TO 28 U.S.C. § 1915(e)(2)

13 DEPARTMENT OF VETERANS

AND DENYING AS MOOT

AFFAIRS,

14 PLAINTIFF’S MOTION TO

Defendant. APPOINT COUNSEL (Doc. No. 14)

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17 INTRODUCTION

18 Presently before the Court is Plaintiff’s Third Amended Complaint (“TAC”) and

19 Motion to Appoint Counsel. Doc. No. 14. For the reasons set forth below, the Court

20 DISMISSES Plaintiff’s Third Amended Complaint and DENIES as moot Plaintiff’s

21 Motion to Appoint Counsel.

22 BACKGROUND

23 On July 6, 2017, Plaintiff Richard Zakosky filed a Complaint, a motion to proceed

24 in forma pauperis, and a Motion to Appoint Counsel. Doc. Nos. 1, 2, 3. The Complaint

25 vaguely alluded to harm caused by the Defendant, the Department of Veteran Affairs

26 (hereinafter, “V.A.”), alleging the V.A.’s actions harmed the Plaintiff. On October 24,

27 2017, the Court granted Plaintiff’s motion to proceed in forma pauperis, denied his motion

28 to appoint counsel, and on sua sponte screening, dismissed the case without prejudice for

1 a failure to state a claim. Doc. No. 4.

2 Plaintiff filed his First Amended Complaint (“FAC”) on November 17, 2017,

3 alleging nearly identical facts as his Complaint. Doc. No. 7. On August 17, 2018, the

4 Court once again dismissed the Plaintiff’s FAC without prejudice for failure to state a

5 claim. Doc. No. 10. On September 17, 2018, Plaintiff submitted to the Court his Second

6 Amended Complaint (“SAC”) along with a Motion to Appoint Counsel, which the Court

7 dismissed without prejudice on December 20, 2019. Doc. Nos. 11, 12.

8 Currently, Plaintiff’s TAC, filed January 17, 2020, asserts that during his

9 employment as a telemetry technician with the V.A. Hospital in San Diego, California, he

10 mentioned to his superiors “the bad behavior and adverse events [that] were occurring by

11 his former colleagues.” Doc. No. 14 at 2. Plaintiff then asserts he refused to cover-up the

12 adverse events and filed a complaint with the Office of the Inspector General, but that “no

13 one showed up,” and the VA Hospital told the Plaintiff to “keep [his] mouth shut and just

14 work.” Id. Due to his underlying depression, Plaintiff alleges these events resulted in him

15 suffering a mental breakdown and medical disability retirement. Id. Additionally, Plaintiff

16 states that he was a victim of the “wait time scandal,” alleging that while pursuing treatment

17 for depression, his medical appointments were canceled––leading him to attempt suicide.

18 Id. Plaintiff asserts, “that the V.A. is responsible for what happened to [him] with true

19 medical negligence.” Id. Finally, Plaintiff concludes that this event led to a violation of

20 his Second Amendment and Due Process rights.

21 Finally, the Plaintiff’s prayer for relief requests a court investigator speak with

22 Mindy O’Halow and Andrea Ortega in the Direct Observation Unit at the VA Hospital who

23 may help substantiate his claim. Id. at 3.

24 DISCUSSION

25 I. Screening Pursuant to 28 U.S.C. § 1915(a)

26 i. Legal Standard

27 Any complaint filed by a person in forma pauperis under 28 U.S.C. § 1915(a) is

28 subject to mandatory and sua sponte review and dismissal by the Court to the extent it is

1 “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking

2 monetary relief from a defendant immune from such relief.” 28 U.S.C. §1915(e)(2)(B);

3 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. §

4 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th

5 Cir. 2000) (en banc). “The standard of determining whether a plaintiff has failed to state

6 a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

7 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

8 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

9 For Plaintiff’s TAC to survive sua sponte review, the complaint must contain “a

10 short and plain statement of wrongdoing showing that the pleader is entitled to relief.” Fed.

11 R. Civ. P. 8(a)(2). Although Rule 8 does not require “detailed factual allegations,” it does

12 demand more than a “the-defendant-unlawfully-harmed-me allegation” or a mere

13 conclusory statement of the defendant’s alleged wrongdoing. Ashcroft v. Iqbal, 556 U.S.

14 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover,

15 to survive a motion for dismissal, the facts within the complaint, if accepted as true, must

16 “state a claim for relief that is plausible on its face.” Id. The wrongdoing and relief alleged

17 in the complaint must allow the “court [to] infer more than a mere possibility of

18 misconduct,” instead it must reach into the realm of plausibility. Id.; see also William O.

19 Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 667 (9th Cir. 2009).

20 If the Court determines that the complaint fails to allege a cognizable claim, the

21 Court may permit leave to amend so that the Plaintiff may cure the deficiencies within the

22 complaint. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000). Courts do not hold

23 “missing or inaccurate legal terminology or muddled draftsmanship against them,”

24 especially when there is civil rights question at issue. Blaisdell v. Frappiea, 729 F.3d 1237,

25 1241 (9th Cir. 2013) (citing Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)).

26 Rather the Court provides pro se litigants a “liberal construction” of the filings. Id.

27 Nonetheless, the Court shall not “supply essential elements that were not initially pled”

28 and “[v]ague and conclusory” assertions of substantial civil rights violations do not provide

1 sufficient evidence to quash a motion to dismiss. See Pena v. Gardner, 976 F.2d 469, 471

2 (9th Cir. 1992).

3 ii. Analysis

4 The Court finds Plaintiff’s TAC fails to make any viable claim on which the Court

5 may grant relief. Within the complaint, Plaintiff makes broad assertions regarding the

6 conduct by the Department of Veteran’s Affairs––allegedly resulting in harm to Plaintiff’s

7 mental health and violating his rights. Although the Court must interpret Plaintiff’s claims

8 liberally, given his pro se status, the TAC does not provide a sufficient basis of plausible

9 misconduct on which the Court may grant relief. Blaisdell, 729 F.3d at 1242.

10 Additionally, Plaintiff alleges the V.A. is liable for medical negligence because of

11 the “wait time scandal,” which resulted in him attempting suicide. To substantiate a claim

12 for medical negligence, Plaintiff must establish that a medical professional breached their

13 duty to a patient resulting in a direct harm. See 28 U.S.C. §1326(b)(1). However, even

14 with liberal construction, the conclusory allegations in Plaintiff’s TAC do not suffice to

15 state a claim, as his complaint merely alleges perceived wrongdoing and misconduct.

16 Further, the statute of limitations (SOL) runs at the accrual of the harm occurred, and since

17 Plaintiff’s claim for medical negligence extends beyond the two-year statute of limitations,

18 beginning once the plaintiff suffered the harm, the action is barred. Tunac v. United States

19 897 F.3d 1197, 1207 (9th Cir. 2018) (citing United States v. Kubrick, 444 U.S. 111 (1979))

20 (internal citations omitted).

21 Finally, the TAC provides no factual details regarding Plaintiff’s alleged Second

22 Amendment or Due Process violations or how the V.A., the only named Defendant in the

23 action, is related to these violations. Doc. No. 14 at 2. Once again, such conclusory

24 statements are insufficient and do not provide a reasonable basis for the Court to maintain

25 this action.

26 II. Request for Appointment of Counsel

27 i. Legal Standard

28 Traditionally, there is no constitutional right for a party to be represented by counsel

1 ||in civil matter. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266,

2 || 269 (9th Cir. 1982). However, under 28 U.S.C. §1915(e)(1), an indigent party may have

3 || counsel appointed under “exceptional circumstances.” See United States v. McQuade, 647

4 || F.2d 938 (th Cir. 1981).

5 ii. Analysis

6 Despite Plaintiff's indigence and corresponding inability to pay for counsel,

7 || Plaintiff fails to state grounds that would allow the Court to determine whether exceptional

8 || circumstances exist.

9 CONCLUSION AND ORDER

10 Based on the foregoing, IT IS HEREBY ORDERED:

11 1. Plaintiff’s amended complaint, Doc. No. 14, is DISMISSED with prejudice for

12 failure to state a claim since any allegation of additional facts would not cure the

13 deficiencies. /d. Plaintiff is not permitted leave to amend the complaint since

14 the Court’s previous order, Doc. No. 12, informed the party that he had one final

15 opportunity to amend the complaint. Plaintiff had a fair opportunity to remedy

16 the deficiencies, and the failure to do so on three separate occasions leads the

17 Court to presume that no further amendments could cure the deficiencies. See

18 Lopez, 203 F.3d at 1129.

19 2. Plaintiff's request for appointment of counsel is DENIED as moot. Doc. No.

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21 IT ISSO ORDERED

22 || DATED: July 2, 2020 | | Mk

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J HN A. HOUSTON

nited States District Judge

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