Heyward v. United States Government

          ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE

          KANDIS A. WESTMORE United States Magistrate Judge

         Defendant, the United States of America, moves to dismiss Plaintiff Marco Heyward's First Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Pursuant to Civil Local Rule 7-1(b), the Court deems the motion suitable for disposition without oral argument and VACATES the hearing currently set for July 7, 2016. For the reasons set forth below, the Court GRANTS the Government's motion and DISMISSES Plaintiff's First Amended Complaint WITH PREJUDICE.

         I. BACKGROUND

         A. Factual Background

         Plaintiff, who is proceeding pro se, has filed a First Amended Complaint alleging medical malpractice in connection with a knee surgery performed by the Department of Veterans Affairs ("VA") in December 2010. In 2010, Plaintiff fell down some stairs and ruptured quadriceps tendons in both of his knees. Am. Compl. (ECF No. 28) Attach. F. On December 28, 2010, he underwent surgery at the San Francisco Veterans Affairs Medical Center to repair the tendons. Am. Compl. at 2 & Attach. A. He alleges that the surgery was performed by Dr. Hubert Kim and Dr. Nancy Kadel, and that the surgical team knew that surgery resulted in his left knee being placed lower than his right knee. Am. Compl. at 3. On May 19, 2011, Nurse Practitioner Betty King allegedly revealed that Plaintiff had re-ruptured his left quadriceps tendon as a result of physical therapy and the positioning of his left knee. Id.; see also Am. Compl. Attach. 1. According to Plaintiff, the VA "recklessly tried to shift the blame to Plaintiff alleging non-compliance, which is an extreme departure from [the] ordinary standard of care." Am. Compl. at 3. Plaintiff has filed an application for additional disability compensation and related compensation benefits with the VA, which he alleges was "the proximate cause of these additional and secondary disabilities for left thigh muscle atrophy, [a]djustment [d]isorder with depression, left knee/right knee and lower back." Am. Compl. at 3-4 & Attach. E.

         On November 16, 2011, Plaintiff filed an administrative claim with the VA seeking $1 million in damages. Am. Compl. at 3. The VA denied Plaintiff's claim on May 3, 2012. See Declaration of Warren Metlitzky ("Metlitzky Decl.") (ECF No. 10-1) ¶ 3 & Ex. B. Plaintiff requested reconsideration on October 31, 2012. See Id . ¶ 4 & Ex. C. The VA denied his request for reconsideration on June 11, 2014. See Id . ¶ 5 & Ex. D; see Am. Compl. at 2.

         B. Procedural History

         1. Heyward I

         On November 19, 2014, Plaintiff filed a pro se complaint against the United States in this Court. See Heyward I, No. 14-cv-5114-KAW, ECF No. 1. Plaintiff's complaint contained three causes of action entitled: (1) 38 U.S.C. § 1151; (2) Malice, Cal. Civ. Code § 3294(a); (3) Intentional Tort, Extraordinary Relief, Restitution of Remedies, 28 U.S.C. § 2674 (Liability of the United States). See Id . On February 9, 2015, the United States moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim. See Heyward I, ECF No. 8. After Plaintiff failed to respond to the United States' motion to dismiss, the Court issued an Order to Show Cause as to why the case should not be dismissed for failure to prosecute. See Heyward I, ECF No. 17. Plaintiff failed to respond to the Court's show cause order. See Heyward I, ECF No. 18. On May 13, 2015, the Court dismissed Plaintiff's action without prejudice for failure to prosecute. See Heyward I, ECF No. 18.

         2. This Action

         Over four months after the dismissal of Heyward I, Plaintiff commenced this action on September 18, 2015, with the filing of a pro se complaint against the United States that was virtually identical to the complaint in Heyward I.^[1] See Compl., ECF No. 1. The complaint sought $40 million in damages. See Id . at 5. The United States moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim. See ECF No. 10. Specifically, as to Plaintiff's tort claim, the United States argued that any FTCA claim was barred by the statute of limitations because the VA denied Plaintiff's request for reconsideration of his administrative claim on June 11, 2014, but this action was not filed until September 18, 2015, more than 15 months later. See Id . In his opposition to the United States' motion to dismiss, Plaintiff claimed that he was not asking the Court to rule on his VA benefits application, but was instead bringing an FTCA claim for "relief for unnecessary pain and suffering due to medical malpractice." See ECF No. 19 at 3.

         While the United States' motion to dismiss was pending, Plaintiff filed a "motion for extension of time to file amended complaint, " which the Court construed as a motion for leave to file an amended complaint. ECF Nos. 26, 29. The Court granted Plaintiff's motion for leave as unopposed and ordered that Plaintiff's First Amended Complaint be deemed filed. ECF No. 29. It further ordered the Government, should it move to dismiss Plaintiff's First Amended Complaint, to "address why equitable tolling would not apply in this case given that the action Plaintiff previously filed, Heyward v. United States Government, No. 14-cv-5114-KAW, appears to have been filed within the applicable statute of limitations." See id.

         The Government has now moved to dismiss the First Amended Complaint, in which Plaintiff asserts a claim for "Extraordinary relief, Restitution of Remedies 28 U.S.C. 2674 (LIABILITY OF UNITED STATES)" and a claim for "malice" under California Civil Code section 3294(a). (Def.'s Mot., Dkt. No. 31; FAC at 5, 6.) Plaintiff filed his opposition to the motion on May 4, 2016. (Pl.'s Opp'n, Dkt. No. 33.) The Government filed its reply on May 13, 2016. (Def.'s Reply, Dkt. No. 34.)

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