# Opinion

> District Court, E.D. California · August 25, 2026

URL: https://www.frixlaw.com/law-library/cases/11440713

## Case

- **Full name:** David Wiens v. United States of America
- **Court:** District Court, E.D. California
- **Decided:** August 25, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DAVID WIENS, No. 2:25-cv-3692 DJC AC PS
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 UNITED STATES OF AMERICA,
15 Defendant.
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17 Plaintiff is proceeding pro se under the Federal Tort Claims Act. The case is referred to
18 the undersigned for pretrial purposes by E.D. Cal. R. (“Local Rule”) 302(c)(21). Before the court
19 is defendant’s motion to dismiss the complaint for failure to satisfy the applicable pleading
20 standards and to state a claim. ECF No. 12. Although plaintiff sent his opposition to defendant
21 rather than filing it, defendant has provided the court with a copy and it has been independently
22 docketed. ECF Nos. 16, 18. The parties appeared for hearing on the motion on August 6, 2026.
23 ECF No. 20. For the reasons stated below, the undersigned recommends that the motion be
24 granted and that plaintiff be given leave to amend.
25 I. Background
26 A. Complaint
27 The 148-page complaint consists primarily of exhibits. Plaintiff indicates at the outset
28 that this lawsuit follows an administrative tort claim regarding a missed medical diagnosis. ECF
1 No. 1 at 2. It then states, “Please see attached for statement of facts.” Id. There is no discrete
2 attachment which is entitled “Statement of Facts.” However, the exhibits (which are not
3 individually marked or identified) do include a lengthy narrative describing plaintiff’s grievances
4 with the medical care that he has received from the VA. Id. at 11-16. Although it is not entirely
5 clear, this statement may have originally been an attachment to plaintiff’s administrative tort
6 claim.
7 In that statement, plaintiff alleges a history of inadequate treatment by VA physicians
8 since 1991. ECF No. 1 at 11-12. This included a 1998 MRI anomaly that was diagnosed as a
9 tumor along his C4 vertebrae, but a biopsy did not suggest it was cancer. Id. Physicians entered
10 a diagnosis of Idiopathic Transverse Myelitis (“ITM”) into plaintiff’s medical record on April 15,
11 2009, but with a note that it had actually been diagnosed in 2004. ECF No. 1 at 12. For decades
12 thereafter, VA staff blamed plaintiff’s frequent seizures, neuropathy, weakness, and ataxia on the
13 ITM infection, which they would in turn blame on plaintiff’s alcoholism. Id.
14 Plaintiff then asserts that on June 26, 2024, he was admitted to the hospital to get an
15 esophagogastroduodenoscopy to diagnose his swallowing problems. Id. at 11. Doctors gave him
16 a lifelong prescription two days later, claiming it was Vitamin B despite plaintiff not being
17 anemic and having normal Vitamin B levels. Id. at 11, 14. Following discharge, plaintiff
18 discovered the prescription was for cyanocobalamin, a synthetic compound of Vitamin B-12 used
19 to treat B-12 deficiencies due to either low intake from food or a genetic inability to absorb
20 vitamins. Id. at 11. He then used Google and its AI search tools to self-diagnose the cause
21 behind an increase in methylmalonic acid despite normal levels of vitamin B-12 and
22 homocysteine, as shown on his tests. Id. at 11, 14. The results included an article published in
23 2015 – two years after he started going to his current Sacramento VA office – suggesting that the
24 cause was methylmalonic aciduria. Id. at 11.
25 Plaintiff’s swallowing problems also caused him to ask VA Doctor Porter at the SCI clinic
26 to reexamine the initial tumor and retest for “all the words that end in osis[,]” in line with the
27 advice he had received at the outset for when this situation arose. Id. at 12. Dr. Porter agreed to
28 look at plaintiff’s August 26, 2024, MRI results, plaintiff having had annual MRI scans for over
1 25 years. Id. By then plaintiff’s methylmalonic acid levels had decreased to normal, and he was
2 no longer experiencing seizures, neuropathy, weakness, or ataxia. Id. at 14. Handing Dr. Porter
3 the progress notes from June through August 2024, plaintiff asked her if he could have an
4 “Idiopathic Transverse Myelitis Mimicking an lntramedullary Spinal Cord Tumor.” Id. at 12-14.
5 She refused to help, however, because plaintiff had previously called the Washington Hotline as a
6 whistleblower to report Dr. Porter. Id. Because methylmalonic aciduria stems from a genetic
7 defect, plaintiff needs a formal diagnosis to see if his family needs to be tested for said defect. Id.
8 at 15.
9 Plaintiff’s claim appears to focus on the VA staff’s continued decision to misdiagnose his
10 methylmalonic aciduria as alcohol-induced ITM, thereby blaming him for it. Id. at 16. The
11 administrative claim sent to the VA sought a corrected diagnosis and treatment plan placed in
12 plaintiff’s medical file. Id. at 16. The VA gave notice that it received this claim on February 3,
13 2025. Id. at 4. On June 26, it denied the claim for lack of a “negligent or wrongful act on the part
14 of a VA employee acting within the scope of employment that caused compensable harm[.]” Id.
15 at 5. The December 23, 2025, complaint asserts a claim under the Federal Tort Claims Act
16 (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, and seeks $35 million in damages. Id. at 2.
17 B. Motion to Dismiss
18 On May 7, 2026, defendant filed a motion to dismiss the complaint for noncompliance
19 with Fed. R. Civ. P. 8 and failure to state a claim. ECF No. 12-1. After plaintiff failed to timely
20 oppose, the court reset the deadline for such opposition to June 22, 2026. ECF No. 14. On June
21 10, 2026, plaintiff signed an opposition brief that he then served on defendant by U.S. Mail
22 without filing it. ECF No. 16-1. Defendant provided a copy of this opposition as an attachment
23 to its reply brief on July 14, 2026. ECF No. 16. On July 20, 2026, the court acknowledged the
24 opposition brief and had it docketed as a separate entry. ECF Nos. 17, 18.
25 II. Analysis
26 A. Legal Standards Governing Motions to Dismiss
27 “The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal
28 sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
1 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of
2 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901
3 F.2d 696, 699 (9th Cir. 1990). “Rule 12(b)(6) is read in conjunction with Rule 8(a), which
4 requires not only ‘fair notice of the nature of the claim, but also grounds on which the claim
5 rests.’” Zixiang Li v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013) (quoting Bell Atlantic Corp. v.
6 Twombly, 550 U.S. 544, 556 n.3 (2007)).
7 Pursuant to Fed. R. Civ. P. 8, a complaint must contain “a short and plain statement of the
8 claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). While detailed
9 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, supported
10 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
11 (citing Twombly, 550 U.S. at 555). “[A] complaint must contain sufficient factual matter,
12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
13 (quoting Twombly, 550 U.S. at 570). “[A] complaint [that] pleads facts that are ‘merely
14 consistent with’ a defendant's liability ... ‘stops short of the line between possibility and
15 plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
16 In order to survive a motion to dismiss, a complaint must contain more than a “formulaic
17 recitation of the elements of a cause of action;” it must contain factual allegations sufficient to
18 “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. It is insufficient
19 for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader
20 might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal
21 Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004)). In reviewing a complaint on a motion
22 to dismiss the court “must accept as true all of the factual allegations contained in the complaint,”
23 construe those allegations in the light most favorable to the plaintiff, and resolve all doubts in the
24 plaintiff's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon
25 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037
26 (2011). However, the court need not accept legal conclusions cast in the form of factual
27 allegations as true. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended,
28 275 F.3d 1187 (2001).
1 Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
2 Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may
3 only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support
4 of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
5 2014). The court’s liberal interpretation of a pro se complaint, however, may not supply essential
6 elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
7 266, 268 (9th Cir. 1982). A pro se litigant is entitled to be made aware of the deficiencies in the
8 complaint and given an opportunity to amend, unless the complaint’s deficiencies cannot be cured
9 by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
10 B. The Complaint Does Not Comply with Rule 8
11 Plaintiff’s complaint does not comply with Rule 8’s requirement of a short and plain
12 statement of the claim. To satisfy Rule 8, a plaintiff must draft his complaint so that it contains a
13 short and plain statement showing that he is entitled to relief (that is, who harmed the plaintiff,
14 and in what way). Fed. R. Civ. P. 8(a)(2); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
15 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to
16 focus litigation on the merits of a claim”). Claims must be set forth simply, concisely and
17 directly, with “sufficient factual content to state a claim to relief that is plausible on its face….”
18 Fed. R. Civ. P. 8(d); Landers v. Quality Communications, Inc., 771 F.3d 638, 641 (9th Cir. 2015).
19 “Shotgun” or “kitchen sink” complaints, such as plaintiff’s 148-page compendium of
20 grievances and related documents, are strongly disfavored. “The plaintiff who files a kitchen-sink
21 complaint shifts onto the defendant and the court the burden of identifying the plaintiff’s genuine
22 claims and determining which of those claims might have legal support. . . . It is the plaintiff['s]
23 burden, under both Rule 8 and Rule 11, to reasonably investigate their claims, to research the
24 relevant law, to plead only viable claims, and to plead those claims concisely and clearly, so that
25 a defendant can readily respond to them and a court can readily resolve them.” Gurman v. Metro
26 Housing & Redevelopment Authority, 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011). It is
27 plaintiff’s job, not the court’s, to extract the key facts from the available documentation and to set
28 them out in a way that tracks the elements of a claim for relief. The court cannot determine
1 whether plaintiff has stated a claim absent a complaint that plainly identifies the specific acts and
2 omissions which are asserted as grounds for relief.
3 The FTCA “allows a plaintiff to bring certain state-law tort suits against the Federal
4 Government.” Brownback v. King, 592 U.S. 209, 210 (2021). The applicable substantive rules
5 of tort law for FTCA claims are supplied by “the law of the place where the act or omission
6 occurred.” See 28 U.S.C. § 1346(b)(1). To state a claim for medical negligence or malpractice in
7 California, a plaintiff must allege (1) the duty of the professional to use such skill, prudence, and
8 diligence as other members of his profession commonly possess and exercise; (2) a breach of that
9 duty; (3) proximate causation between the negligent conduct and the resulting injury; and (4)
10 actual loss or damage resulting from the professional's negligence. See Hanson v. Grode, 76 Cal.
11 App. 4th 601, 606 (1999). To comply with Rule 8, a complaint must in simple terms identify the
12 facts which show each of these elements is satisfied. Because the present complaint does not do
13 so, it must be dismissed.
14 C. The Complaint Must Establish Subject Matter Jurisdiction
15 Defendant points out that the complaint does not expressly allege that plaintiff timely
16 presented an administrative claim, which is required prior to filing suit so that the targeted agency
17 has a chance to investigate and resolve the claim. ECF No. 12-1 at 4-5. Because the FTCA
18 operates as a waiver of sovereign immunity, and such waiver is expressly predicated on
19 presentation of an administrative claim, 28 U.S.C. § 2675(a), satisfaction of the presentation
20 requirement is jurisdictional. See Vacek v. U.S. Postal Service, 447 F.3d 1248, 1250 (9th Cir.
21 1998).
22 The complaint fails to identify, in a “short and plain statement” as required by Rule 8,
23 when plaintiff filed an administrative claim, what it addressed, and when it was denied.
24 However, it is perfectly clear that he did in fact submit a claim. The attachments to the complaint
25 include the VA’s confirmation that it received such a claim on February 3, 2025. ECF No. 1 at 2;
26 ECF No. 12-1 at 5, n.2. The jurisdictional defect can accordingly be cured by amendment.
27 ////
28 ////
1 III. Leave to Amend Is Appropriate
2 A pro se litigant is entitled to an opportunity to amend, unless the complaint’s deficiencies
3 cannot be cured by amendment. Noll, 809 F.2d at 1448. The defects identified above are of a
4 type that may be cured by amendment. Accordingly, plaintiff should be given the opportunity to
5 amend his complaint.
6 IV. Amending the Complaint
7 If plaintiff chooses to amend the complaint following the district judge’s adoption of these
8 findings and recommendations, the amended complaint must allege facts establishing the
9 existence of federal jurisdiction. This includes facts showing plaintiff’s satisfaction of the
10 FTCA’s administrative claim requirement.
11 In addition, an amended complaint must contain a short and plain statement of plaintiff’s
12 claims. This means that plaintiff must set out his factual allegations, rather than referring to
13 attachments. Plaintiff should distinguish between background facts (which need not be extensive)
14 and those facts on which his claim for relief is based. The allegations of the complaint must be
15 set forth in sequentially numbered paragraphs, with each paragraph number being one greater
16 than the one before, each paragraph having its own number, and no paragraph number being
17 repeated anywhere in the complaint. Each paragraph should be limited “to a single set of
18 circumstances” where possible. Rule 10(b). As noted above, forms are available to help
19 plaintiffs organize their complaint in the proper way. They are available at the Clerk’s Office,
20 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at
21 www.uscourts.gov/forms/pro-se-forms.
22 Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid
23 narrative and storytelling. That is, the complaint should not include every detail of what
24 happened, nor recount the details of conversations (unless necessary to establish the claim), nor
25 give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should
26 contain only those facts needed to show how the defendant legally wronged the plaintiff.
27 The amended complaint must not force the court and the defendants to guess at what is
28 being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)
1 (affirming dismissal of a complaint where the district court was “literally guessing as to what
2 facts support the legal claims being asserted against certain defendants”). The amended
3 complaint must not require the court to spend its time “preparing the ‘short and plain statement’
4 which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not
5 require the court and defendants to prepare lengthy outlines “to determine who is being sued for
6 what.” Id. at 1179.
7 The amended complaint must not refer to a prior pleading in order to make plaintiff’s
8 amended complaint complete. An amended complaint must be complete in itself without
9 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended
10 complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline
11 Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint
12 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &
13 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an
14 original complaint, each claim and the involvement of each defendant must be sufficiently
15 alleged.
16 V. Pro Se Plaintiff’s Summary
17 The magistrate judge is recommending that the motion to dismiss be granted but that you
18 have the chance to amend your complaint. Do not file an amended complaint until after the
19 district judge rules on this recommendation and gives you a deadline. When you prepare an
20 amended complaint, carefully follow the instructions above. An amended complaint needs to tell
21 the court in simple terms what happened that amounts to medical malpractice or negligence,
22 rather than expecting the court to figure it out from exhibits.
23 VI. Conclusion
24 Accordingly, IT IS HEREBY RECOMMENDED that:
25 a. The motion to dismiss (ECF No. 12) be GRANTED WITH LEAVE TO AMEND;
26 and
27 b. Plaintiff be given 30 days from the date of this order to file an amended complaint
28 that include a brief statement of facts underlying his claim.
] These findings and recommendations are submitted to the United States District Judge
2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days
3 || after being served with these findings and recommendations, any party may file written
4 | objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a
5 || document should be captioned “Objections to Magistrate Judge’s Findings and
6 || Recommendations.” Any response to the objections shall be filed with the court and served on all
7 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file
8 | objections within the specified time may waive the right to appeal the District Court’s order.
9 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57
10 | (9th Cir. 1991).
11 | DATED: August 24, 2026 ~
12 _Athuer—Clore
ALLISON CLAIRE
13 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11440713. Public record. Not legal advice.