The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING, WITH LEAVE TO AMEND, PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM WITHIN THE JURISDICTION OF THIS (ECF No. 1) COURT
Plaintiff Keith Machart ("Plaintiff") proceeds in propria persona in this medical malpractice complaint against defendants Clinica Sierra Vista, Arvin Community Health Center, and Aurora T. Reimer-Cole, P.A. ("Defendants"). The claim arises from Defendants provision of allegedly inadequate medical care to Plaintiff.
Because Defendants are all federally funded health care facilities or employees thereof and acting within the scope of their employment at the time Plaintiff's claim arose, Plaintiff's claim is brought properly under the Federal Tort Claims Act (the "FTCA"). Under the FTCA, a Plaintiff must exhaust available administrative remedies before bringing an action in federal court. Plaintiff has failed to timely exhaust his remedies under the FTCA. Accordingly, the Court lacks jurisdiction over, and must dismiss, this case.
II. ALLEGATIONS IN THE COMPLAINT
Plaintiff alleges that he was a patient of defendant, Clinica Sierra Vista ("Clinica") beginning on June 1, 2007. (Compl. at 1, ECF No. 1.) He attended the clinic several times with symptoms including severely swollen lymph nodes, difficulty swallowing and occasional difficulty in breathing. (Id. at 1-2.) Employees of Clinica failed to properly diagnose and treat this condition; he was told repeatedly that he had "a virus." (Id.) Despite his worsening condition, the Defendants failed to treat Plaintiff or arrange appropriate treatment for him. Although Plaintiff requested a referral to a specialist, employees of Clinica failed to arrange it. (Id.)
In May 2008, Plaintiff's wife arranged for him to see a specialist through their insurance company. (Id. at 2-3.) 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, "possibly permanent injury" and almost cost him his life (Id.)
On September 17, 2009, Plaintiff, acting in pro per, filed an action against Defendants in Kern County Superior Court. Defendants removed the action to federal Court on October 26, 2010. See Machart v. Arvin Community Health Ctr., Case No. 1:10-cv-2020-LJO-DLB (E.D. Cal., Oct. 26. 2010). Defendants filed a motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because Plaintiff failed to file timely a proper administrative claim within two years of the claimed injury. However, the Court granted the motion on alternative grounds - that the administrative claim had yet to be denied or deemed to be denied. Machart v. Arvin Community Health Ctr., 2010 U.S. Dist. LEXIS 131680 (E.D. Cal., Dec. 10, 2010).
On February 14, 2011, Plaintiff received a notice from the Department of Health and Human Services denying the claim. (Compl. at 5.) The notice advised Plaintiff that the claim was denied on two grounds: (1) that the evidence failed to establish that his alleged personal injuries were due to the negligent, wrongful acts of a federal employee acting within the scope of employment; and (2) that the claim was presented more than two years after the date of the injury and was untimely. (Id.) Plaintiff filed the present Complaint two weeks later on February 28, 2011.
IV. SCREENING REQUIREMENT
The Court is required to screen all complaints brought by plaintiffs proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001). The Court must dismiss a complaint or portion thereof if the action has raised claims that are legally "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than ...