Fitzpatrick v. United States Dep't of Labor Office of Workers Comp. Programs
| Decision Date | 16 May 2022 |
| Docket Number | 21cv01561-LL-JLB |
| Parties | JOHN FITZPATRICK, an individual, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR OFFICE OF WORKERS COMPENSATION PROGRAMS, Defendant |
| Court | U.S. District Court — Southern District of California |
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS AND (2) DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT [ECF NOS. 16, 17, 18, 20]
Plaintiff John Fitzpatrick, an individual appearing pro se[1] (“Plaintiff”), brings this action against Defendant the United States Department of Labor, Office of Workers Compensation Programs (“DOL-OWCP” or “Defendant”). ECF No 1.
Before the Court are (1) Defendant's Motion to Dismiss Plaintiff's Complaint, ECF No. 16, and (2) Plaintiff's Motion for Leave to File a First Amended Complaint, ECF No. 20. The motions were submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure (“FRCP”). After considering the papers submitted, supporting documentation, and applicable law, the Court (1) GRANTS Defendant's Motion to Dismiss and (2) DENIES Plaintiff's Motion for Leave to Amend.
On December 11, 2015, Plaintiff alleges he was involved in an industrial slip and fall accident and injured his metatarsal bone aboard the U.S.S. San Diego (LPD-22), while working as an employee of General Dynamics Information Technology, Inc. (“GDIT”), a Virginia corporation and government contractor. ECF No. 1 at 4-5[3]; ECF No. 20-1 at 3:2, 7:21-24. Broadspire, LLC is GDIT's carrier for its workers compensation insurance. ECF No. 20-1 at 5:18-21.
On March 30, 2016, he underwent magnetic resonance imaging (“MRI”) of his right ankle. ECF No. 1 at 8. He claims this MRI showed injury to his right ankle, but the Case Manager and Claims adjuster misrepresented it as normal, denying him benefits under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901, et seq. (the “LHWCA”). Id.; see also ECF No. 20-1 at 3:5-9.
In May 2016, Plaintiff alleges that GDIT reported the metatarsal injury to the OWCP, five months delinquent.[4] ECF No. 1 at 5. He pleads that GDIT neglected to include the torn PB tendon which had been discovered” on March 30, 2016. Id.
On July 19, 2016, Plaintiff alleges he was terminated from his employment with GDIT, without adjudication or proper administration of his claim, and denied future medical treatment. ECF No. 1 at 8; ECF No. 20-1 at 6:16-17. Only after this termination did Plaintiff submit forms for compensation to both California and the LHWCA programs. ECF No. 20-1 at 6:16-7:1. However, he claims that at some point, and unbeknownst to him, “he was rehired by GDIT as a ghost employee, unable to get benefits either from worker's compensation or his company sponsored insurance.” Id. at 7:1-6.
On March 5, 2018, Plaintiff alleges he discovered that his March 30, 2016 MRI did, in fact, show additional compensable injuries to his right ankle, so he immediately filed the Employee's Claim for Compensation Form LS-203.[5] ECF No. 1 at 8. That same day, he reported the newly discovered concealed tendon injury to the OWCP Long Beach, California regional director's office. ECF No. 1 at 2. He states that the Division of Longshore and Harbor Workers' Compensation (the “DLHWC”) directed him to file the Pre-Hearing Statement Form LS-18, saying an administrative law judge (“ALJ”) would determine his claim. Id.
On April 12, 2018, Plaintiff had new MRI scans of his right ankle done. ECF No. 1 at 8. On April 26, 2018, he alleges these new scans were shared with Dr. Tontz, Jr., which is when his bi-weekly benefit payments restarted.[6] Id.
On August 28, 2018, Plaintiff alleges that while undergoing an examination by Dr. Kent Feldman, he sustained additional “consequential, compensable injuries, ” which he timely reported. ECF No. 1 at 2.
On December 10, 2018, Plaintiff alleges that he had a hearing via telephone, during which he asked to be heard regarding an independent medical examination, and he also requested financial restoration of the missing 20 months of benefits he alleges he was owed. ECF No. 1 at 10, ¶ 7. He pleads both requests were denied, and the judge continued the claim to June 2019 for a hearing. Id.
On January 29, 2019, Plaintiff alleges that GDIT's attorney took Plaintiff's 21.5 months of bi-weekly entitlement pay, converted $31, 152.00 of his entitlement to refund the California Employment Development Department for State Disability Insurance while retaining the balance of approximately $44, 000.00. ECF No. 1 at 10, ¶ 5.
On August 5, 2019, Plaintiff filed a third Form LS-203, when he discovered a source of his additional injuries. ECF No. 1 at 12, ¶ 5. He pleads that he was denied treatment from the workers compensation doctors and had to seek treatment from the VA for his nonservice related injuries. Id. at 12, ¶¶ 5-6.
In November 2019, Plaintiff filed a fourth LS-203, adding the “newly discovered Peroneal Longus tendon trauma and cervical herniation trauma, ” allegedly suffered from his August 2018 examination by Dr. Kent Feldman. ECF No. 1 at 12, ¶ 7.
On January 30, 2020, Plaintiff alleges that he attempted to present the previously stated allegations to the ALJ at a hearing but was denied the opportunity to be heard. ECF No. 1 at 13, ¶ 4. He claims the ALJ denied his requests to be re-heard regarding his request for an independent medical examination and financial restoration of the missing 20 months of benefits he alleges he was owed. Id. at 13, ¶ 5. He pleads that the ALJ remanded the case back to the OWCP for administration of his claim. Id. He also alleges that the ALJ approved stipulations that GDIT had typed up, stating that Plaintiff would agree to accept half of his entitlement, which the ALJ told Plaintiff that if he did not accept, it would be at least a year before he would receive compensation. Id. at 13, ¶¶ 5-7. Plaintiff states that he “shall appeal the stipulations” but has yet to do so. Id. at 13, ¶ 7; but see 20 C.F.R. § 702.393 (requiring an appeal of an ALJ's order to be brought to the Benefits Review Board within 30 days of the order).
In March 2020, Plaintiff pleads he was still employed, and thus, could not get unemployment, but his workers compensation benefits ceased. ECF No. 20-1 at 8:19-21.
Plaintiff alleges that “[t]he OWCP was ordered by a federal judge to administer [his] claim, on two separate occasions[, ] and still neglected to comply.” ECF No. 1 at 14, ¶ 7. Plaintiff claims that 41 bi-weekly entitlements were never paid to him. Id. at 4. He pleads, inter alia, that Defendant negligently investigated and failed to properly administer his claim made pursuant to the LHWCA for his injuries due to the accident, which resulted in the denial of workers compensation benefits to him. Id. at 4. He seeks injunctive relief pursuant to the Federal Tort Claims Act Procedure, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), and 2671-2680 (the “FTCA”), and damages pursuant to 42 U.S.C. § 1983 (“Section 1983”) based upon “the continuing violations of Plaintiff's rights under the Fourth and Fifth Amendments to the United States Constitution” arising out of “the negligent mishandling and denial of medical treatment.” Id. at 1. He alleges that these actions also violated the LHWCA. Id.
On September 3, 2021, Plaintiff filed his civil rights complaint, alleging six claims for relief for (1) FTCA Right to Entitlement Administered Pursuant to 33 U.S.C. §§ 901 -950, 20 CFR §§ 702.101- 702.811, 42 U.S.C. § 1983; (2) FTCA Right to Entitlement Administered Pursuant to Statute Under 33 U.S.C. §§ 901 - 950, 20 CFR §§ 702.101702.81, and 42 U.S.C. § 1983; (3) FTCA Right to Entitlement Administered Pursuant to Statute Under 33 U.S.C. §§ 901 - 950, 20 CFR §§ 702.101- 702.811, and 42 U.S.C. § 1983[7]; (4) violation of Section 1983 arising out of Article VI, the Supremacy Clause, the Fourth Amendment Right to Freedom From Unreasonable, Seizure of Property, the Fifth Amendment Right to Due Process and Equal Protection, and Violation 15 of 33 U.S.C. § 916 Liens Against Longshore Entitlement; (5) FTCA Right to Entitlement Administered Pursuant to Statute Under 33 U.S.C. §§ 901 - 950, 19 and 20 CFR §§ 702.101- 702.811, and 42 U.S.C. § 1983; and (6) violation of Section 1983 arising out of the Fifth Amendment Right to Due Process and Equal Protection and violation of 33 U.S.C. Longshore Entitlement to Adequate Medical Treatment. ECF No. 1.
On September 3, 2021, a process server mailed a copy of the complaint via regular mail to Defendant but did not indicate personal service had been made. ECF No. 3. However, Rule 4(i) of the FRCP sets forth various requirements for serving the United States and its agencies, including, inter alia, serving both the United States and Attorney General by certified mail. Fed.R.Civ.P. 4(i).
Although service had not been completed in accordance with FRCP 4(i), on November 16, 2021, Plaintiff filed a Motion for Entry of Default against Defendant. ECF No. 3. On November 17, 2021, the Clerk of the Court entered Defendant's Default. ECF No. 4. On November 18, 2021, Defendant filed an Ex Parte Motion to Set Aside the Default Pursuant to Rule 55(c) of the FRCP. ECF No. 5. On November 19, 2021, Plaintiff filed a Motion for Entry of Default Judgment Against Defendant. ECF No. 6.
On November 19, 2021, this Court set aside entry of Defendant's default for failure to comply with Rule 4(i) of the FRCP and denied Plaintiff's Motion for Entry of Default Judgment as moot. ECF No. 7. On November 29, 2021 Plaintiff filed an opposition to the Court's order, ECF No. 8, but the Court declined to vacate its order that same day, ...
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