United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
David Wiens, is proceeding in this action pro se. This matter
was referred to the undersigned in accordance with Local Rule
302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the
court are plaintiff's complaint and motion to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1
& 2.) The complaint asserts that an employee of the
defendant improperly extracted plaintiff's tooth.
court is required to screen complaints brought by parties
proceeding in forma pauperis. See 28 U.S.C. §
1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122,
1129 (9th Cir. 2000) (en banc). Here, plaintiff's
complaint is deficient. Accordingly, for the reasons stated
below, the undersigned will recommend that plaintiff's
application to proceed in forma pauperis be denied and that
plaintiff's complaint be dismissed without leave to
Plaintiff's Application to Proceed In Forma
in forma pauperis application makes the showing required by
28 U.S.C. § 1915(a)(1). However, a determination that a
plaintiff qualifies financially for in forma pauperis status
does not complete the inquiry required by the statute.
“‘A district court may deny leave to proceed in
forma pauperis at the outset if it appears from the face of
the proposed complaint that the action is frivolous or
without merit.'” Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting
Tripati v. First Nat. Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987)); see also McGee v. Department
of Child Support Services, 584 Fed.Appx. 638 (9th Cir.
2014) (“the district court did not abuse its discretion
by denying McGee's request to proceed IFP because it
appears from the face of the amended complaint that
McGee's action is frivolous or without merit”);
Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)
(“It is the duty of the District Court to examine any
application for leave to proceed in forma pauperis to
determine whether the proposed proceeding has merit and if it
appears that the proceeding is without merit, the court is
bound to deny a motion seeking leave to proceed in forma
the court must dismiss an in forma pauperis case at any time
if the allegation of poverty is found to be untrue or if it
is determined that the action is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief against an immune defendant.
See 28 U.S.C. § 1915(e)(2). A complaint is
legally frivolous when it lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
(9th Cir. 1984). Under this standard, a court must dismiss a
complaint as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327; 28
U.S.C. § 1915(e).
state a claim on which relief may be granted, the plaintiff
must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). In considering
whether a complaint states a cognizable claim, the court
accepts as true the material allegations in the complaint and
construes the allegations in the light most favorable to the
plaintiff. Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 740 (1976); Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981).
minimum requirements for a civil complaint in federal court
are as follows:
A pleading which sets forth a claim for relief . . . shall
contain (1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks.
Fed. R. Civ. P. 8(a).
appears from plaintiff's filing that this court currently
lacks subject matter jurisdiction over this action. In this
regard, the complaint alleges that the “VA HOSP. DENTAL
DEPT IMPROPERLY EXTRACTED” plaintiff's tooth.
(Compl. (ECF No. 1) at 8.) An action based on the negligent
or wrongful conduct of a government employee must be brought
against the United States as a claim pursuant to the Federal
Tort Claims Act, (“FTCA”), 28 U.S.C. §§
2671-2680. See also Kennedy v. U.S. Postal Service,
145 F.3d 1077, 1078 (9th Cir. 1998) (“the United States
is the only proper party defendant in an FTCA action”).
“a FTCA action ‘shall not be instituted'
against the United States unless the claimant first presents
his claim to the ‘appropriate federal agency' and
the claim is denied.” Wilson v. Drake, 87 F.3d
1073, 1076 (9th Cir. 1996) (quoting Meridian Int'l
Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th
Cir. 1991)). The requirement is jurisdictional and
“must be strictly adhered to.” Jerves v.
United States, 966 F.2d 517, 521 (9th Cir. 1992). In
this regard, when the plaintiff fails to exhaust
administrative remedies prior to filing suit, a FTCA action
may not be maintained. McNeil v. United States, 508
U.S. 106 (1993).
attached to plaintiff's complaint is a letter dated April
5, 2017, from the U.S. Department of Veterans Affairs,
(“VA”), acknowledging receipt of plaintiff's
FTCA claim. (ECF No. 1 at 19.) The letter explains that the
“VA has six months to consider a claim before”
plaintiff has “the option to file suit in U.S. District
Court.” (Id. (citing 28 U.S.C. § 2675)).
Plaintiff filed this action on August 11, 2017, less than six
months after the VA received his claim. (ECF No. 1.)
Moreover, on October 3, 2017, plaintiff filed a status
report. That filing included an October 3, 2017 letter from
the VA finding “no negligent or wrongful act on the