Wheeler v. United States, Case No.: 1:12-cv-00540 - LJO - JLT

• Decision Date: 04 May 2012
• Docket Number: Case No.: 1:12-cv-00540 - LJO - JLT
• Parties: JOHN FREDERICK WHEELER, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

JOHN FREDERICK WHEELER, Plaintiff,

v.UNITED STATES, et al., Defendants.

Case No.: 1:12-cv-00540 - LJO - JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: May 4, 2012

FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S MOTION TO PROCEED

IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT WITHOUT LEAVE TO AMEND

(Docs. 1, 2, 5)

John Frederick Wheeler ("Plaintiff") commenced this action on April 19, 2012 by filing a motion to file a complaint and a complaint against the United States for violations of his civil rights. (Docs. 1-2). On April 27, 2012, Plaintiff filed a motion to proceed in forma pauperis. (Doc. 5). Plaintiff's motion to file the complaint is GRANTED. However, for the following reasons, the Court recommends Plaintiff's motion to proceed in forma pauperis be DENIED and the complaint be DISMISSED without leave to amend.

I. MOTION TO PROCEED IN FORMA PAUPERIS

As a general rule, all parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the commencement of an action "without prepayment of fees and costs of security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only ifleave to proceed in forma pauperis ("IFP") is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1178, 1177 (9th Cir. 1999).

The Ninth Circuit has held "permission to proceed in forma pauperis is itself a matter of privilege and not a right; denial of an informa pauperis status does not violate the applicant's right to due process." Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to proceed IFP. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In making a determination, the court "must be careful to avoid construing the statute so narrowly that a litigant is presented with a Hobson's choice between eschewing a potentially meritorious claim or foregoing life's plain necessities." Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

Here, the Court recommends Plaintiff's application to proceed be denied because, as discussed below, Plaintiff's complaint fails to state a meritorious claim upon which relief may be granted.¹ See 28 U.S.C.§ 1915(e)(2).

II. SCREENING REQUIREMENT

When an individual seeks to proceed in forma pauperis, the Court is required to review the complaint and identify "cognizable claims." See 28 U.S.C § 1915(a)-(b). The Court must dismiss a complaint, or portion of the complaint, if it is "frivolous, malicious or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

III. PLEADING STANDARDS

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further,

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a complaint to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

IV. PLAINTIFF'S ALLEGATIONS

Plaintiff alleges that on or about January 27, 2012, he went to Clinica Sierra Vista² without an appointment for treatment. When he arrived, he was told there was only one doctor because the other doctor was sick so the only chance to be treated was if a patient failed to appear for his appointment. (Doc. 1 at 5). According to Plaintiff, the same thing happened on or about February 14, 2012, when he again sought medical treatment at Clinica Sierra Vista. Id. Each time, the staff suggested he go to an urgent care center for treatment. Id. at 6. Plaintiff admits that the urgent care center was only five blocks from his home but he found the urgent care center to be "inconvenient" because Clinica Sierra Vista is even closer to his house. Id.

On February 18, 2012, Plaintiff went to an appointment at Clinica Sierra Vista. (Doc. 1 at 7). Plaintiff alleges his appointment was set for 5:30 p.m., and when he arrived at about 4:35, there were "several or a few" Hispanic patients in the waiting room. Id. Plaintiff contends several Latinos were called back to see a doctor before Plaintiff saw his physician, including a boy and man who arrived at 5:20 and were called back at 6:00 p.m. Id. Plaintiff asserts he was called back to the doctor at about 6:25 p.m. Id.

Plaintiff complains that because of the time it took to complete his examination and the time it took for the doctor to write his prescription, he had an inadequate amount of time to travel to his preferred pharmacy before it closed. (Doc. 1 at 8) As a result, he had to wait until the morning to obtain his prescription for antibiotics to address his chest congestion. Id. He asserts that had he not been forced to wait for 55 minutes after his appointed time, he would have received his medication sooner. Id.

According to Plaintiff, "he is being discriminated against because of his race, and the denial of his right to see a doctor is a denial of his rights to access [] public facilities." (Doc. 1 at 5). Plaintiff contends the majority of the staff at Clinica Sierra Vista is Latino, and each time Plaintiff goes there, "it seems like they take [Latinos] back to see a doctor before they take him." Id. Therefore, Plaintiff alleges violations of 42 U.S.C. §§ 1981, 1983 and discrimination in public accommodations under 42U.S.C. §§ 2000a, et seq. Id. at 2. In addition, Plaintiff alleges medical malpractice by physicians at Clinica Sierra Vista. Id. at 8.

V. DISCUSSION AND ANALYSIS

A. Plaintiff has failed to comply with the Federal Tort Claims Act

Previously, this Court has recognized Clinica Sierra Vista is a federally funded healthcare facility, and the Court has jurisdiction over any tort claims alleged pursuant to 28 U.S.C. § 1346(b). See Acuna v. County of Kern, 2010 U.S. Dist. LEXIS 59214, at *2 (E.D. Cal. June 15, 2010). Because Clinica Sierra Vista is a federally funded medical clinic, the proper defendant in the action is the United States. See id.

The Federal Tort Claims Act ("FTCA") is the exclusive remedy against the United States for personal injuries "resulting from the performance of medical, surgical, dental, or related functions ... by any commissioned officer or employee of the Public Health Service ..." 42 U.S.C. § 233(a). Significantly, the FTCA's coverage extends to entities deemed Public Health Service employees, such as federally supported medical clinics. 42 U.S.C. § 233(a). Accordingly, Plaintiff is required to comply with the FTCA to state a claim for medical malpractice.

Under the FTCA, an "action shall not be instituted upon a claim against the United States for money damages" unless a plaintiff has exhausted administrative remedies. 28 U.S.C. § 2675(a). Thus, only after an administrative claim is denied, or deem denied, may a claimant file an action in federal court. Id. "The purpose of the FTCA's administrative claim procedure is 'to encourage administrative settlement of claims against the United States and...