United States District Court, N.D. California, Oakland Division
ORDER GRANTING MOTION TO DISMISS FIRST AMENDED
COMPLAINT WITH PREJUDICE
A. WESTMORE United States Magistrate Judge
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.
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.
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.
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.
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. 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.
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."
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.)