Johnson v. United States
| Decision Date | 11 December 2013 |
| Docket Number | No. C-13-2405 EMC,C-13-2405 EMC |
| Parties | JAMES ELLIS JOHNSON, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiff, James Ellis Johnson, a United States veteran, filed a complaint ("Complaint") against the United States; the City and County of San Francisco ("CCSF"), five employees of the San Francisco Veterans Affairs Medical Center ("SFVAMC"), the Mayor of San Francisco; and the Sheriff of the City and County of San Francisco ("Sheriff). Plaintiff alleges that the Department of Veterans Affairs ("VA") police ("Police") used excessive force and humiliated him during an arrest, and that the Sheriff stood by and did nothing. Plaintiff also alleges that the VA unlawfully restricted benefits to which he was entitled. Plaintiff is pro se.
Currently pending before the Court is the United States' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and the CCSF's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Having considered the papers, the Court GRANTS IN PART AND DENIES IN PART the United States' motion to dismiss with leave to amend. The Court GRANTS the CCSF's motion to dismiss with leave to amend.
The facts according to the Complaint and attached exhibits ("Exhibits") are as follows. (Facts alleged for the first time in Plaintiff's oppositions ("Oppositions") to the motions are excluded.) Plaintiff is a 63-year old veteran. Compl. at 8; Exh. at 56. On January 30, 2012, Plaintiff visited the SFVAMC for a medical appointment. Compl. at 6. Because Plaintiff is under an order of behavioral restriction, he is required to check in with the VA Police upon his arrival. Compl. at 4; Exh. at 28. Plaintiff checked in with the Police and proceeded to go see the doctor. Exh. at 13. When he arrived at the doctor's office, a hospital employee called the Police because Plaintiff did not have Police escort. Id.
Plaintiff had been instructed to check in with the Police, but had not been instructed to inform the Police that they must escort him to the doctor. Exh. at 12, 28. The SFVAMC states in its letter issuing the order of behavioral restriction: Exh. at 28. These instructions differed from those in the VA's computers, which said that he was to have Police escort to appointments. Exh. at 12, 73.
The Police handcuffed Plaintiff. Exh. at 14. (The Complaint and Exhibits allege no facts that describe what happened between the VA Police appearing on the scene and handcuffing Plaintiff.) When Plaintiff asked for the reason for the arrest, the Police said "they did not need any." Exh. at 12. The Police forced him down the hallway in a lock hold. Exh. at 14. Plaintiff told the Police he was in pain because he had a torn rotator cuff in his right shoulder and a limited range of motion in his left. Exh. at 14. One of the policemen took Plaintiff's driver's license out of Plaintiff's wallet and affixed it to his badge, saying to Plaintiff and the other policemen that this was his "trophy." Id. One of the policemen told Plaintiff to "go pay for your own medical care." Compl. at 11. The Police placed Plaintiff in a holding cell and threatened to come in to beat him up. Exh. at 14. They came into the cell and "force[d] [Plaintiff's] body into the wall," while Plaintiff was still handcuffed. Exh. at 14-15.
The Police put Plaintiff in the back of a "small police car." Exh. at 15. Because he did not fit, they put Plaintiff "in the little space between the front and back seat floor space." Id. Theyturned sharply and sped up while turning, so that Plaintiff's shoulders slammed into the fiberglass back seats and wall behind the front seats, deliberately causing him pain. Id. The Police "took the long way" to the San Francisco County Jail ("Jail"). Exh. at 15, 31.
Once they arrived at the Jail, instead of taking Plaintiff inside, the Police sat Plaintiff in a chair "side ways" in the Jail parking lot, for more than two hours, with his hands still handcuffed behind his back. Exh. at 15, 31. Plaintiff felt that his arms were being "torn apart," and told the Police repeatedly how much pain he was in. Exh. at 15-16. Plaintiff asked whether they could handcuff him to the nearby trashcan to ease the pain, but the Sheriff (who first becomes involved at the Jail) said he "did not care." Exh. at 16, 31.
Once Plaintiff was taken inside, the Sheriff took a booking photo of Plaintiff, but allowed one of the VA Policemen to hold the booking information card and be included in the photo, "to add to [Plaintiff's] humiliation." Exh. at 31-32. As the photo was being taken, the VA Policeman said, "this is going to be my trophy." Exh. at 31. They gave Plaintiff a copy of the booking photo, but Plaintiff did not recognize himself. Exh. at 17, 33. Later, the police records office said it was a photo of Plaintiff taken on August 19, 1999. Exh. at 33. This is not possible because Plaintiff was not at the Jail on that date and, in fact, had undergone an operation. Id.
Plaintiff was put in a cell and was released eight hours later with an order that he appear in court on February 6. Exh. at 16. When he appeared in court, however, he was told there were no charges against him. Id. At the Jail, Plaintiff had been booked for "disturbing the peace by loud noise" and "resisting, obstructing, delaying of a peace officer." Exh. 10-11, 26.
As a result of the Police "manhandling" Plaintiff, the rotator cuff in Plaintiff's left shoulder was torn, needing surgery. Exh. at 10, 13-14. A doctor at the SFVAMC concluded, based on an MRI taken February 28, 2012, that Plaintiff had a partial tear in the supraspinatus tendon of his left rotator cuff, but her impression was that the shoulder appeared similar to 2006. Exh. 21-23. A different doctor, at California Advanced Imaging, concluded, based on an MRI taken March 21, 2012, that Plaintiff had a full tear in the left supraspinatus tendon. Exh. at 24.
Plaintiff has had a difficult relationship with the SFVAMC. The SFVAMC banned Plaintiff from coming to their hospital from March 2007 until July 2011, except to receive care for "life-threatening emergencies." Compl. at 5; Opp. to U.S. Exh. at 22.1 Subsequently, in August 2011, Plaintiff was put under an order of behavioral restriction ("OBR"). The letter from the SFVAMC issuing the OBR states that the OBR was issued because Plaintiff had made "threats against staff, including screaming and waving [his] cane in a threatening manner." Exh. at 28. Pursuant to the OBR, the SFVAMC placed a "behavioral flag" on Plaintiff in the VA's national computer database. Compl. at 7; Exh. at 73-74, 76. Plaintiff alleges that the stated reasons for the behavioral flag "from 2009 to present were all fabricated." Compl. at 5.
Plaintiff alleges nine causes of action: (1) Staging conflict situations in order to maintain a warning flag in a national computer; (2) Violation of Due Process; (3) Slander; (4) False arrest; (5) Public humiliation; (6) False imprisonment; (7) First degree criminal assault with malice intended on a disabled person; (8) Pain and suffering caused by violent injury; and (9) Torture and terrorism on a disabled person. Compl. at 9-10.
Plaintiff demands from the United States that criminal charges be brought against the policemen that "beat" Plaintiff on January 30, 2012; that the behavioral flag be removed from the VA's computers; that he be issued a medical card so that he no longer has to receive care at a VA medical center; and $2,075,000. Compl. at 10. In short, Plaintiff seeks both injunctive relief and damages. Plaintiff demands from the CCSF payment of 20% of medical expenses and $500,000. Id. As to the CCSF, therefore, Plaintiff seeks only damages.
Oral argument for the present motions had been set for October 17, 2013. However, Counsel for the United States moved for a ruling on the papers, because he was furloughed due to the federal government shutdown. See Docket No. 50. The Court granted Counsel's motion. See Docket No. 56.
The Court denies the United States' request for judicial notice. Courts may only take judicial notice of facts that are not subject to reasonable dispute. See Fed. R. Evid. 201. The United States has attached two exhibits in a request for judicial notice in support of its motion to dismiss. See Docket No. 22. One is a record made by the doctor at the SFVAMC with whom Plaintiff had an appointment on the day of the arrest. It describes the events that led up to the arrest. The other is a police report of the VA Police that describes the arrest. Neither is judicially noticeable because they report material facts that are subject to dispute.
Under Federal Rules of Civil Procedure 12(b)(1), a party may move to dismiss based on the court's lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A district court may lack jurisdiction under a statutory scheme created by Congress that confers jurisdiction over certain claims to specific federal courts and denies jurisdiction over the claims to all other federal courts. See Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1019-1020 (9th Cir. 2012). It may also lack jurisdiction over certain tort claims if the plaintiff has failed to exhaust administrative remedies. See 28 U.S.C. § 2675.
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges...
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