McRae v. Bairamian
| Decision Date | 26 August 2018 |
| Docket Number | 1:16-cv-01066-LJO-GSA-PC |
| Court | U.S. District Court — Eastern District of California |
| Parties | MICHAEL SCOTT McRAE, Plaintiff, v. DR. DIKRAN BAIRAMIAN, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM
(ECF No. 14.)
Michael Scott McRae ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).1 On July 25, 2016, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On March 28, 2017, the court screened the Complaint under 28 U.S.C. § 1915A and issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.)
On May 1, 2017, Plaintiff filed the First Amended Complaint. (ECF No. 10.) On February 12, 2018, the court screened the First Amended Complaint and issued an order dismissing the First Amended Complaint for failure to state a claim, with leave to amend. (ECF No. 13.)
On March 9, 2018, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (ECF No. 14.)
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Plaintiff is presently incarcerated at the Springfield Medical Center for Federal Prisoners in Springfield, Missouri. The events at issue in the Second Amended Complaint allegedly occurred when Plaintiff was incarcerated at the United States Penitentiary (USP)-Atwater in Atwater, California, in the custody of the Federal Bureau of Prisons (BOP).Plaintiff names as defendants Dr. Dikran Bairamian, Dr. Kevin Cuong Nguyen, the United States of America, Dr. Nadar M. Peikar, Dr. David Betz, and the Sutter Health Memorial Medical Center (Medical Center) (collectively, "Defendants"). Defendants Bairamian and Nguyen were employed at the Medical Center in Modesto, California, during the relevant time period. Defendants Peikar and Betz were employed at USP-Atwater during the relevant time period. Plaintiff's allegations follow.
Plaintiff fell on the wet kitchen floor at USP-Atwater and was taken to the infirmary for an examination by defendant Dr. Peikar, Plaintiff's doctor. For several months afterward, Plaintiff submitted medical request forms to obtain additional medical care. Defendant Dr. Peikar knew the extent of Plaintiff's pain and medical condition. Dr. Peikar also knew that the delay in treatment was largely ineffective, but declined to do anything more to attempt to improve Plaintiff's medical situation.
Defendant Dr. Bairamian, a private doctor contracted with the BOP, arrived at USP-Atwater to assess Plaintiff's lower back for surgery. After an examination and x-rays, Dr. Bairamian informed Plaintiff that surgery was necessary. Plaintiff asked both doctors Peikar and Bairamian, if there was an alternative to surgery and was told that if surgery was not performed, Plaintiff would become paralyzed or die. Plaintiff elected to have the lower back surgery.
On July 22, 2014, Plaintiff was escorted to the Medical Center in Modesto, California, for treatment and surgery on his lower back by defendants Dr. Bairamian, Dr. Nguyen, and Dr. Betz. Without Plaintiff's knowledge or consent, Plaintiff was given the wrong surgery on his upper back, which left Plaintiff unable to walk correctly and with long-term injury to his back.
Plaintiff alleges that he filed administrative claims to the Western Regional Director of the BOP for incidents occurring on July 22, 2014 and October 19, 2015, claim numbers TRT-PCF-2016-01101 and TRT-WXR-2016-05196, respectively, and that he exhausted these claims.
Plaintiff requests monetary relief and costs of suit.
Plaintiff brings claims in the Second Amended Complaint under the Federal Tort Claims Act, for medical battery and medical malpractice. The FTCA, 28 U.S.C. §§ 1346, 2671-80, waives the United States' sovereign immunity for tort actions and vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of government employees. D.L. by & through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017) (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)). Before a plaintiff can file an FTCA action in federal court, he must exhaust the administrative remedies for his claim. 28 U.S.C. § 2675(a). An administrative claim is deemed exhausted once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition of the claim within six months of the claim's filing. Id. The FTCA's exhaustion requirement is jurisdictional and may not be waived. Id. (citing Jerves, 966 F.2d at 519).
The FTCA includes officers and employees of "any federal agency" but expressly excludes "any contractor with the United States." 28 U.S.C. § 2671. The "critical test for distinguishing an agent from a contractor is the existence of federal authority to control and supervise the 'detailed physical performance' and 'day to day operations' of the contractor, and not whether the agency must comply with federal standards and regulations." Carrillo v. United States, 5 F.3d 1302, 1304 (9th Cir. 1993) (quoting Ducey v. United States, 713 F.2d 504, 516 (9th Cir. 1983)). Thus, the federal government is not responsible for the negligence of the employees of other entities, merely because they are working under a federal contract, maintaining property owned by the federal government, or working on projects funded by the federal government. See, e.g., Logue v. United States, 412 U.S. 521 ().
"The United States is the only proper defendant in a [Federal Tort Claims Act] action." Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (citing Woods v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983)). The FTCA authorizes tort actions against the United States if the United States, as a private person, would be liable to the plaintiff under Californiatort law. United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 511 (2005); Delta Savings Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2001). Any duty owed to the plaintiff by the United States "must be found in California state tort law." Id.
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Plaintiff has submitted documentation of his administrative claims as exhibits attached to the Second Amended Complaint. (ECF No. 14 at 11-28.) Plaintiff provides a copy of an administrative claim that he submitted to the California Victim Compensation and Government Claims Board (VCGCB) on January 8, 2015, and also provides evidence that he did not receive a response to this claim. (ECF No. 14 at 18-26.) However, filing a timely claim with the VCGCB, even if a response is received, is not sufficient to exhaust a FTCA claim. To exhaust his remedies for a FTCA claim, Plaintiff must file a claim with the "appropriate federal agency." 28 U.S.C. § 2675(a). The VCGCB is a California state agency, not a federal agency. Therefore, Plaintiff's allegation that he filed a claim with the VCGCB does not satisfy the FTCA's claim presentation requirement.
Exhaustion in FTCA cases is jurisdictional, McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), and must be specifically pled, Franklin v. United States, No. 1:11 CV 00173 GSA PC, 2013 WL 2902844, at *2 (E.D. Cal. June 13, 2013). Plaintiff alleges that he submitted administrative claims to the Western Regional Director of the BOP for incidents occurring on July 22, 2014 and October 19, 2015, claim numbers TRT-PCF-2016-01101 and TRT-WXR-2016-05196, and that he exhausted these claims.
Plaintiff's evidence shows that claim number TRT-PCF-2016-01101 was received by the Western Regional Office of the BOP on December 1, 2015. (ECF No. 14 at 11.) Plaintiff sought $5,500,000.00 in compensation from Dr. Nguyen, Dr. Dikran...
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