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Curtis R. Kimes v. Erik K. Shinseki

March 9, 2011



This matter came before the court on July 16, 2010, for hearing of defendant's motion to dismiss plaintiff's first amended complaint. Plaintiff Curtis R. Kimes, who is proceeding pro se in this action, appeared on his own behalf. Attorney J. Earlene Gordon appeared for defendant. Oral argument was heard, and defendant's motion was taken under submission.


Plaintiff, a veteran, alleges that beginning in May of 2003 he complained to his Principal Care Provider ("PCP") at the Veterans Affairs ("VA") Clinic in Auburn, California of a minor sensation in his chest. Plaintiff's PCP ordered an x-ray, which was negative. Nevertheless, the sensation in plaintiff's chest progressed into a persistent discomfort.

Eventually in late August of 2003, the discomfort transformed into an intense and debilitating pain.

At 7:30 a.m. on Monday September 8, 2003, plaintiff telephoned the VA Clinic in Auburn and requested an immediate appointment with his PCP. Clinic Manager Huberty and Staff Operator Anderson informed plaintiff that he would first have to speak with a triage nurse, who was not available until later that day. Eventually plaintiff contacted the triage nurse, but was not scheduled to see his PCP for another two days thereafter. When plaintiff finally saw his PCP, the PCP only ordered that plaintiff receive Ibuprofen and Vicodin and even those pain medications were not delivered to plaintiff until September 15, 2003.

In October of 2003, plaintiff complained to his PCP that the prescribed pain medications were ineffective. Plaintiff continued to complain to his PCP, and to various supervisory personnel at the VA Medical Center in Reno, that the prescribed pain medications were ineffective. In late December 2003, plaintiff's prescriptions for pain medication expired and plaintiff's PCP refused to renew those prescription, telling plaintiff that she could not provide him anymore help, despite the PCP's failure to initiate any treatment or procedure to diagnose plaintiff's condition. That same month plaintiff was informed that his care was being transferred from the VA Clinic in Auburn, to another clinic.

During a January 30, 2004 visit to the VA Medical Center in Reno plaintiff sought immediate medical attention at the clinic's triage station. Plaintiff was put in a wheelchair and eventually given an EKG. It was determined that plaintiff's blood pressure was 184/92. Plaintiff requested further medical evaluation and pain medication, but those requests were denied because VA triage staff would not act further without a referral from plaintiff's PCP. In this regard, triage staff informed plaintiff that because his chest pain had lasted longer than six months it was a chronic condition requiring a referral from his PCP. Plaintiff was finally scheduled for an emergency appointment with his PCP on February 2, 2004.

At 8:30 a.m. on February 2, 2004, plaintiff received a call from the VA Clinic in Auburn. Plaintiff was informed that his appointment, scheduled for later that day, had been canceled, that his PCP, a Dr. Flaig, refused to continue as plaintiff's PCP, that no alternate PCP would be named, that plaintiff's medical records had been removed from the clinic's computer system and that plaintiff would have to receive future medical care at either the VA Medical Center in Reno or the VA Medical Center in Sacramento.

On February 6, 2004, plaintiff received a phone call from the Patient Advocate for the VA Medical Center in Reno, who advised plaintiff that a meeting had just ended and that plaintiff's medical care at the VA Clinic in Auburn had been reestablished. Plaintiff was also informed that a teleconference was scheduled for February 23, 2004 to address plaintiff's medical concerns and his assignment to his new PCP, an individual by the name Ashcraft.

On February 11, 2004, in response to extreme pain, the cause of which had still yet to be diagnosed, plaintiff phoned the VA Under-Secretary for Health and spoke with Executive Secretary Lil McDonald, who promised plaintiff that something would be done. Later that afternoon, the Patient Advocate for the VA Medical Center in Reno telephoned and informed plaintiff that his previously prescribed pain medication would be delivered to the VA Clinic in Auburn by 4:30 p.m. February 12, 2004. Also on February 12, 2004, plaintiff received a letter from the VA OIG Hotline Office, advising plaintiff that his concerns had been forwarded to the VA Medical Center in Reno, from whom he would receive a direct reply. However, plaintiff never received a reply.

On March 9, 2004, plaintiff was denied a refill of his pain medication after allegedly failing to attended a February 23, 2004 appointment with his newly assigned PCP. Plaintiff's medical records do not show that he was ever scheduled for an appointment on February 23 or February 27. However, there is a note comment in the records stating, "Please note that he was a no-show for an appointment on 2-27-04 that was specially to accommodate him."

On March 17, 2004, plaintiff contacted the VA Clinic in Auburn to schedule an Urgent Care Appointment to obtain a refill of his pain medication and to request more effective pain medication. Plaintiff was informed by the clinic's Interim Manager that he could not schedule an Urgent Care Appointment because plaintiff already had an appointment scheduled with his PCP for April 14, 2004. On April 28, 2004, plaintiff was improperly diagnosed as suffering from costochondritis.*fn1 This diagnosis was made in the absence of any diagnostic testing or imaging. On February 17, 2005, however, a CT scan revealed that plaintiff was actually suffering from a chondrosarcoma.*fn2

Plaintiff alleges that those involved in his medical care were negligent in failing to even attempt to diagnose the true origin of his persistent and observable pain prior to the February 17, 2005 CT scan. (First Am. Compl. (Doc. No. 26) at 3-8, 39.)*fn3


Plaintiff filed his original complaint in this action on March 27, 2009. (Doc. No. 1.) After multiple status conferences concerning plaintiff's inadequate service of process, defendant was properly served and filed a motion to dismiss on March 16, 2010. (Doc. No. 19.) On April 8, 2010, plaintiff filed a motion for leave to amend his original complaint, (Doc. No. 21), as well as an opposition to defendant's March 16, 2010 motion to dismiss. (Doc. No. 22.) Defendant's motion to dismiss and plaintiff's counter-motion to amend were heard before the court on April 23, 2010. On April 27, 2010, defendant's March 16, 2010 motion to dismiss was granted and plaintiff was granted thirty days to file and serve an amended complaint. (Doc. No. 25.)

On May 21, 2010, plaintiff filed his first amended complaint, alleging a claim of medical malpractice against defendant under the Federal Torts Claim Act ("FTCA"). ("First Am. Compl." (Doc. No. 26.)) Defendant filed the motion to dismiss now pending before the court on June 3, 2010. ("MTD" (Doc. No. 27.)) Plaintiff filed an opposition on July 2, 2010, ("Opp'n." (Doc. No. 28)), and defendant filed a reply on July 9, 2010. ("Reply" (Doc. No. 29.))


In moving to dismiss, defendant first argues that this court lacks jurisdiction over plaintiff's claim because plaintiff has failed to allege exhaustion of his administrative remedies and because plaintiff's claim is barred by the FTCA's two-year statute of limitations. (MTD (Doc. No. 27-1) at 5-7.) Defendant argues that plaintiff made two complaints concerning his alleged injuries, first to the VA's OIG Hotline on or before February 12, 2004 and then a second "Administrative Tort Claim" which was apparently filed on January 5, 2007. (Id. at 6.) Defendant argues that plaintiff has not alleged that either of those complaints complied with the requirements of the FTCA, nor has plaintiff included a copy of his administrative complaints, showing a description of his claim and a sum certain for damages. (Id.) Defendant argues further that even assuming plaintiff's tort claims complied with the FTCA's exhaustion requirements, the FTCA's two-year statute of limitations would bar any claim arising prior to January 5, 2005. (Id.) Finally, defendant argues that plaintiff has failed to allege the necessary elements of a medical malpractice claim under California law. (Id. at 8.) In this regard, defendant argues that plaintiff has not identified any medically recognized test that could have assisted in the accurate diagnosis of his condition prior to February 2005, that plaintiff has not provided the name of an individual who allegedly mis-diagnosed him and that plaintiff has not alleged that an earlier diagnosis of his condition would have resulted in a different medical outcome. (Id. at 9.)

In opposing defendant's motion, plaintiff asserts that he did in fact file an Administrative Tort Claim on January 5, 2007. (Opp'n. (Doc. No. 28) at 3.) According to plaintiff, that claim was denied by the VA's Regional Counsel on December 20, 2007. (Id.) Plaintiff states he then appealed the Regional Counsel's decision to the VA's General Counsel on April 11, 2008. (Id.) Moreover, plaintiff argues that the two-year statute of limitations on his medical malpractice claim did not begin to run until he learned of his actual condition in February 2005. (Id. at 5.) Finally, plaintiff argues that he has sufficiently stated a medical malpractice claim against defendant. (Id. at 6-10.)

In reply, defendant reasserts the arguments that plaintiff has failed to meet his burden of alleging that he exhausted his administrative remedies, that plaintiff's claim is barred by the applicable two-year statue of limitations and that plaintiff has failed to state a claim for relief. (Reply (Doc. No. 29) at 2-7.)


When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003), Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. ...

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