UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 2, 2013
CHRISTINE PLANTE, ET AL.,
THE UNITED STATES
The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND SUA SPONTE DISMISSING WITHOUT OF PREJUDICE AMERICA, [Doc. No. 2]
Plaintiffs Christine Plante and Christian Stone, proceeding pro se, filed this Federal Tort Claims Act action alleging medical malpractice by federally-funded healthcare facilities. [Doc. No. 1.] Plaintiff has not paid the $350 civil filing fee required to commence this action, but filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a). [Doc. No. 2.]
I. Motion Leave to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a suit without prepayment of fees if plaintiffs submit an affidavit, including a statement of all assets, showing inability to pay filing fees. See 28 U.S.C. § 1915(a). Plaintiffs have submitted an affidavit that sufficiently shows their inability to pay filing fees. [See Doc. No. 2.] Accordingly, the Court hereby GRANTS Plaintiff's motion to proceed in forma pauperis.
II. Sua Sponte Review and Dismissal
Proceeding in forma pauperis, Plaintiff's complaint is subject to sua sponte review and must be dismissed if it "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) ("section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."). A complaint fails to state a claim if it "does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). Even as to pro se complaints, "unadorned, the-defendant-unlawfully-harmed-me accusation" will not suffice. Iqbal, 556 U.S. at 678.
"Claims of medical malpractice against federally-funded health care facilities and their employees acting in the scope of their employment must be pursued against the United States under the [Federal Tort Claims Act]." Galvan v. Brock, 2012 WL 4863068, at *2 (E.D. Cal. Oct. 11, 2012). "The Federal Tort Claims Act (FTCA or Act) authorizes private tort actions against the United States under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." United States v. Olson, 546 U.S. 43, 44 (2005) (internal quotation omitted). Here, the alleged medical malpractice occurred in California, and "[u]nder California law, the elements of a medical malpractice claim include: . . . '(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.'" Wheeler v. United States, 2012 WL 1594148, at *4 (E.D. Cal. May 4, 2012) (quoting Hernandez ex rel. Telles--Hernandez v. United States, 665 F.Supp.2d 1064, 1076 (N.D. Cal. 2009) (citing Hanson v. Grode, 76 Cal.App.4th 601, 606 (1999))).
Though Plaintiffs reference a litany of maladies and medical treatments, they make no attempt to explain how any of the alleged conduct by medical professionals reflects a failure to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise. [See Doc. No. 1.] Moreover, and consequently, no proximate causal relationship between any alleged conduct and the referenced maladies is plausibly pled. [Id.] Thus, Plaintiffs have failed to "allege sufficient facts to support a cognizable legal theory." Cervantes, 656 F.3d at 1041. Indeed, as currently pled, Plaintiffs' complaint amounts to "unadorned, the-defendant-unlawfully-harmed-me accusation," which cannot suffice to state a claim. Iqbal, 556 U.S. at 678. Still, because amendment is not necessarily futile, Plaintiffs' complaint is hereby DISMISSED WITHOUT PREJUDICE.
For the foregoing reasons, the Court hereby GRANTS Plaintiff's motion for leave to proceed in forma pauperis, but sua sponte DISMISSES WITHOUT PREJUDICE Plaintiff's complaint for failure to state a claim. Plaintiff is granted leave to file an amended complaint that cures the deficiencies identified above no later Monday, May 27, 2013.
IT IS SO ORDERED.
© 1992-2013 VersusLaw Inc.