Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wiens v. United States of America Veterans Hospital

United States District Court, E.D. California

November 8, 2017

DAVID KAY WIENS, Plaintiff,
v.
UNITED STATES OF AMERICA VETERANS HOSPITAL, Defendant.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         The 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 amend.

         I. Plaintiff's Application to Proceed In Forma Pauperis

         Plaintiff's 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 pauperis.”).

         Moreover, 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).

         To 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).

         The 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).

         II. Plaintiff's Complaint

         It 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”).

         However, “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).

         Here, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.