The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND
I. First Amended Complaint
On June 22, 2010, the Court granted Plaintiff's motion to proceed in forma pauperis. (Doc. 3) The Court is required to review complaints filed IFP. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e). The Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984)). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc).
1. Federal Rule of Civil Procedure 8(a)
Federal Rule of Civil Procedure 8(a) requires Plaintiff to provide, "a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support", "a short and plain statement of the claim showing that the pleader is entitled to relief" allegations outlining the relief sought. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the plaintiff's claim plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984).
1. Summary of Allegations in Complaint
Plaintiff alleges that he was a patient of defendant, Clinica Sierra Vista ("Clinica") beginning on June 1, 2007. (Doc. 4 at 1) He attended the clinic several times with symptoms including severely swollen lymph nodes, difficulty swallowing and occasional difficulty in breathing. Id. Employees of Clinica failed to properly diagnose and treat this condition and he was told repeatedly that he had "a virus." Id. at 1-2. Despite his worsening condition, the Defendants failed to treat Plaintiff or arrange appropriate treatment for him. Id. Although Plaintiff requested a referral to a specialist, employees of Clinica failed to arrange it. (Doc 4 at 2) Finally, in May 2008, Plaintiff's wife arranged for him to see a specialist through their insurance company. Id. On June 18, 2008, the specialist performed a biopsy and diagnosed Plaintiff as suffering from stage 4A "Squamous Cell Carcinoma." Id. Plaintiff contends that the delay in treatment by Clinica was below the standard of care, caused him pain and suffering and "possibly permanent injury" and almost cost him his life Id. at 2-3.
Plaintiff alleges that he has sued the same defendant in Kern County Superior Court in case number "CV268396DRL" but has now filed this action because the defendant's attorney told him that this is a "Federal Court matter." (Doc 4 at 2) Review of the docket of Kern County Superior Court case number S-1500-CV-268396, reveals that Plaintiff has sued Clinica, Arvin Community Health Center and Aurora T. Cole-Reimer PAC, although none of the defendants have filed a responsive pleading as yet.*fn1
Plaintiff alleges that he has filed a federal tort claim and is awaiting response to the claim. (Doc. 4 at 2) However, Plaintiff has attached a copy of a June 23, 2010 letter from the United States Department of Justice related to his June 13, 2010 administrative tort claim. (Doc. 4, attachment) The letter indicates that the claim was determined to be invalid and was being returned to Plaintiff due to the fact that it "lacks a sum certain." Id.
2. 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 employees acting in the scope of their employment must be initiated under the Federal Tort Claims Act ("FTCA"). To do this, a Plaintiff must have filed an administrative claim and received a final determination of his claim. 42 U.S.C. § 233(g) (exclusive remedy against United States for actions against federally funded clinics and employees acting in the scope of their employment). Only after the administrative claim is denied or deemed denied (28 U.S.C. § 2675(a)) whichever occurs first, may the claimant file his action in federal court and then, he has only six months in which to act. 28 U.S.C. § 2401(b). The purpose of the FTCA's claims-filing requirement is "'to encourage administrative settlement of claims ...