The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDING AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM WITHIN THE JURISDICTION OF THIS COURT (ECF No. 9)
Plaintiff Keith Machart ("Plaintiff"), proceeding in propria persona, filed his complaint against defendants Clinica Sierra Vista, Arvin Community Health Center, and Aurora T. Reimer-Cole, P.A. ("Defendants") asserting a medical malpractice claim. Because Defendants are all federally funded health care facilities or were in the employment 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. Because Plaintiff failed to timely exhaust his remedies under the FTCA, the Court lacks jurisdiction and must dismiss the case.
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), arguing a lack of subject matter jurisdiction because Plaintiff failed to file timely (within two years of his claimed injury) a proper administrative claim. The Court, granted the motion, but did so 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 his claim. (Compl. at 5.) The notice advised Plaintiff that the claim had been 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 is untimely. (Id.) Plaintiff filed the present Complaint two weeks later on February 28, 2011.
On January 23, 2012, the Court dismissed the Complaint, with leave to amend, for failure to properly exhaust administrative remedies. (ECF No. 7.) Plaintiff was ordered to file an amended complaint on or before February 22, 2012. Plaintiff failed to do so, and the Court ordered Plaintiff to show cause why the case should not be dismissed for failure to comply with a court order. (ECF No. 8.) In response, Plaintiff filed a First Amended Complaint discussing the exhaustion issue, but not addressing and resolving the Court's concerns about his failure to exhaust administrative remedies. (ECF No. 9.)
In his First Amended Complaint, Plaintiff provides several explanations for failing to exhaust administrative remedies. He explains that the alleged medical negligence, mis-diagnosing his throat cancer as a virus, caused him extreme physical pain and suffering.
(Am. Compl. at 1-2.) He also alleges that since he did not know that the matter was to be filed in federal court, he instead initiated his action in state court in September 2009. (Id.) Due to his lack of legal knowledge, he sought assistance from several attorneys, but did not realize until March 2010 that he had to file in federal court. (Id. at 2.)
III. ALLEGATIONS IN THE COMPLAINT
Plaintiff, in his original complaint, alleges that he was a patient of defendant, Clinica Sierra Vista ("Clinica") beginning on June 1, 2007.*fn1 (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, and 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. (Id.) Although Plaintiff requested a referral to a specialist, employees of Clinica failed to arrange for same. (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 and "possibly permanent injury" and almost cost him his life (Id.)
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 ...