Thompson v. United States ( 2023 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 VICTORIA THOMPSON, acting on No. 2:22-CV-01459-JAM-JDP behalf of the late Russell 13 Gene Thompson, 14 Plaintiff, 15 v. ORDER GRANTING MOTIONS TO DISMISS 16 UNITED STATES OF AMERICA, 17 Defendant. 18 19 The United States (“Defendant”) moves this Court for an 20 order dismissing several causes of action in Victoria Thompson’s 21 (“Plaintiff”) First Amended Complaints for lack of subject matter 22 jurisdiction and failure to state a claim upon which relief can 23 be granted. See Mot. to Dismiss (“First Mot.”), ECF No. 13, Mot. 24 to Dismiss (“Second Mot.”), ECF No. 25. Plaintiff opposed the 25 motions. See First Opp’n, ECF No. 14, Second Opp’n, ECF No. 27. 26 Defendant replied. See First Reply, ECF No. 21, Second Reply, 27 ECF No. 28. 28 /// 1 For the reasons set forth below, this Court GRANTS 2 Defendant’s motions.1 3 4 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 5 Plaintiff is the surviving spouse of Russell Gene Thompson 6 (“Decedent”), who was a patient at the Veterans Affairs-Martinez 7 Outpatient Clinic from March 19, 2021 to May 7, 2021 and the 8 Veterans Affairs-San Francisco Medical Center from August 19, 9 2021 to October 6, 2021. First Amended Complaint (“Second FAC”), 10 ECF No. 23, ¶ 19, First Amended Complaint (“First FAC”), ECF 11 No. 7, ¶ 16. Both facilities and their employees operate under 12 the direction and supervision of Defendant’s Department of 13 Veterans Affairs. Second FAC ¶¶ 9-10. Plaintiff alleges that 14 Decedent entered the Martinez facility suffering from various 15 wounds and coronary complications. Id. ¶ 20. During Decedent’s 16 stay at the Martinez facility, Plaintiff alleges that Decedent: 17 (1) fell twice; (2) lost approximately 9.5 pounds; (3) had not 18 been regularly fed; (4) had open wounds that worsened during his 19 stay; and (5) was transferred to another facility twice because 20 of medical decline. Id. ¶¶ 23-38. 21 Plaintiff alleges that these incidents were the result of 22 medical malpractice by the Martinez facility’s staff and filed 23 one of the operative FACs in Victoria Thompson v. United States 24 of America, Case No. 2:23-CV-00403-JAM-JDP, which the Court later 25 consolidated into the instant case. See Order Consolidating 26 Cases, ECF No. 22. Plaintiff brings eleven claims under the 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for May 9, 2023. 1 Second FAC pursuant to the Federal Torts Claims Act (FTCA), 2 alleging ten counts of negligence and one violation of 3 California’s Elder Abuse and Dependent Adult Civil Protection Act 4 (“Elder Abuse Act”). See Second FAC. On March 28, 2023, 5 Defendant filed its motion to dismiss the Second FAC, arguing 6 that (1) Plaintiff’s Elder Abuse Act claim should be dismissed 7 for failure to state a claim upon which relief can be granted 8 under Federal Rule of Civil Procedure (FRCP) 12(b)(6) and 9 (2) Plaintiff is not eligible to receive punitive damages or 10 prejudgment interest under the FTCA. Second Mot. at 4. 11 Plaintiff opposed the motion. See Second Opp’n. Defendant 12 replied. See Second Reply. 13 On November 2, 2022, Plaintiff filed the First FAC, relating 14 to Decedent’s treatment at the Veterans Affairs-San Francisco 15 Medical Center from August 19, 2021 to October 6, 2021. See 16 First FAC. Decedent entered the facility and was diagnosed with 17 mental health complications. Id. ¶ 17. Plaintiff alleges that 18 during Decedent’s time at the facility: (1) Decedent developed 19 multiple open skin sores that caused him increased pain; and 20 (2) medical staff turned off his heart defibrillator. Id. ¶¶ 27- 21 30. Decedent died at the San Francisco facility on October 6, 22 2021. Id. ¶ 18. Plaintiff further alleges that medical staff 23 impeded her access to Decedent’s body, which she was not able to 24 retrieve for burial for more than two weeks after his death. Id. 25 ¶¶ 33-36. 26 Plaintiff brings the following ten claims under the First 27 FAC pursuant to the FTCA: (1) lack of informed consent; 28 (2) murder; (3) negligence in the detention of human remains in 1 violation of California Health and Safety Code § 7053; 2 (4) negligence by medical staff relating to Decedent’s skin 3 sores; (5) negligence by medical staff relating to Decedent’s 4 pain from the skin sores; (6) negligence relating to Decedent’s 5 limited mobility; (7) negligence by the medical center relating 6 to Decedent’s skin sores; (8) negligence by the medical center 7 relating to Decedent’s pain from the skin sores; (9) negligent 8 conduct in violation of the Elder Abuse Act; and (10) wrongful 9 death. See First FAC. On February 6, 2023, Defendant filed its 10 motion to dismiss the First FAC, arguing that Plaintiff’s second, 11 third, and ninth claims should be dismissed under FRCP 12(b)(1) 12 and 12(b)(6) and that Plaintiff was not entitled to punitive 13 damages or prejudgment interest. First Mot. at 5-7. Plaintiff 14 opposed the motion. See First Opp’n. Defendant replied. See 15 First Reply. 16 17 II. OPINION 18 A. Legal Standard 19 Dismissal is appropriate under FRCP 12(b)(1) when the Court 20 lacks subject matter jurisdiction over the claim. Fed. R. Civ. 21 P. 12(b)(1). The motion may either (1) dispute the sufficiency 22 of the pleadings to establish federal jurisdiction or (2) allege 23 a lack of federal jurisdiction despite the formal sufficiency of 24 the complaint. Blue Lake Rancheria v. Morgenstern, No. 2:11-CV- 25 01124 JAM, 2011 WL 6100845, at *2 (E.D. Cal. Dec. 6, 2011). 26 Standing challenges are also properly plead under FRCP 12(b)(1). 27 Id. When a defendant brings a motion to dismiss for lack of 28 subject matter jurisdiction pursuant to Rule 12(b)(1), the 1 plaintiff has the burden of establishing subject matter 2 jurisdiction. See Rattlesnake Coalition v. United States Envtl. 3 Protection Agency, 509 F.3d 1095, 1102, n. 1 (9th Cir. 2007). 4 In considering a motion to dismiss for failure to state a 5 claim upon which relief can be granted under FRCP 12(b)(6), the 6 Court must accept the allegations in the complaint as true and 7 draw all reasonable inferences in favor of Plaintiff. Moss v. 8 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The complaint must 10 possess more than “a formulaic recitation of the elements of a 11 cause of action;” it must contain non-conclusory, factual 12 allegations sufficient “to raise a right to relief above the 13 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 554 (2007). 15 B. Analysis 16 1. First Motion to Dismiss 17 a. Counts Two and Three 18 Defendant contends that Plaintiff’s second and third causes 19 of action in the First FAC for murder and negligence in the 20 detention of human remains must be dismissed on (1) sovereign 21 immunity and (2) standing grounds. First Mot. at 5. Defendant 22 first argues that, although Defendant has waived sovereign 23 immunity for certain tort claims under the FTCA, it has not 24 waived immunity for criminal claims; Plaintiff’s second and third 25 claims both constitute criminal causes of action with criminal 26 penalties, so they are barred by sovereign immunity. Id. 27 Defendant further notes that Plaintiff lacks standing to pursue 28 these criminal claims because neither creates a private cause of 1 action under which Plaintiff can litigate as a private citizen; 2 that right is exclusively reserved to prosecutors, absent express 3 statutory provisions that state otherwise. Id. at 6. 4 With respect to Plaintiff’s murder claim, Plaintiff first 5 states that the claim can be amended to negligence if the Court 6 grants Defendant’s motion. First Opp’n ¶ 24, 29. Plaintiff then 7 argues that a state murder charge can be tried against Defendant 8 in a civil trial and asks the Court to expand the jurisdiction of 9 the FTCA to include harms beyond torts. Id. ¶¶ 27-28. With 10 respect to Plaintiff’s negligence in the detention of human 11 remains claim, Plaintiff first argues that Defendant is negligent 12 per se because there is a rebuttable presumption of negligence if 13 there is a violation of a statute, which occurred in the instant 14 case. Id. ¶ 30. Plaintiff also claims that California Health 15 and Safety Code § 7053 does not exclusively fall under the state 16 penal code and allows for both civil and criminal suits. Id. 17 ¶¶ 31-32. Plaintiff further argues, in the alternative, that 18 Plaintiff can also prove the elements of traditional negligence 19 against Defendant for its alleged violation of § 7053. Id. ¶¶ 34– 20 37. 21 The Court finds Defendant’s sovereign immunity argument 22 persuasive and dispositive. The United States is “immune from 23 suit save as it consents to be sued, and the terms of its consent 24 to be sued in any court define the [C]ourt’s” subject matter 25 jurisdiction. United States v. Sherwood, 312 U.S. 584, 586 26 (1941). Absent a statutory waiver of sovereign immunity, an 27 action against the United States must be dismissed. Elias v. 28 Connett, 908 F.2d 521, 527 (9th Cir. 1990). Plaintiff has 1 brought her claims under the FTCA and has cited to no other 2 statutory waivers of sovereign immunity by Defendant under which 3 her claims can be brought. The FTCA provides a limited waiver of 4 the sovereign immunity of Defendant for torts committed by 5 federal employees acting within the scope of their employment. 6 Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). 7 While Plaintiff contends that her second and third claims fall 8 under the FTCA, the Court disagrees. Plaintiff has provided no 9 persuasive or controlling authority that would permit this Court 10 to qualify either claim as a tort and exercise jurisdiction over 11 them in accordance with the FTCA. To the contrary, the Court 12 finds that Plaintiff’s second and third claims are criminal 13 felony and misdemeanor offenses, respectively, against which 14 Defendant is immune from suit. Therefore, the Court dismisses 15 these claims with prejudice. 16 b. Count Nine 17 Defendant argues that Plaintiff’s ninth cause of action 18 alleging a violation of the Elder Abuse Act should be dismissed 19 for failure to state a claim upon which relief can be granted; 20 Defendant claims that Plaintiff simply alleges the negligent 21 provision of care by Decedent’s medical staff, which does not 22 meet the Elder Abuse Act’s requisite standard of “egregious” 23 conduct. First Mot. at 6-7. Plaintiff responds that Defendant’s 24 violation of the Elder Abuse Act constitutes both negligence per 25 se and traditional negligence. First Opp’n ¶¶ 38, 44–47. 26 Plaintiff also references case law to support her contention that 27 Elder Abuse Act violations can be civilly litigated, even when 28 arbitration agreements are involved. Id. ¶¶ 41-43. 1 The Court finds Defendant’s argument persuasive. Plaintiff 2 alleges that Defendant’s staff at Veterans Affairs-San Francisco 3 Medical Center violated the Elder Abuse Act by neglecting 4 Decedent’s medical needs and depriving him of medically necessary 5 services. First FAC ¶¶ 131–35. The Elder Abuse Act requires a 6 plaintiff to prove by clear and convincing evidence that a 7 defendant is “liable for physical abuse, neglect, or financial 8 abuse (as these terms are defined in the Act), and that the 9 defendant has been guilty of ‘recklessness, oppression, fraud, or 10 malice’ in the commission of such abuse.” Covenant Care, Inc. v. 11 Superior Ct., 32 Cal. 4th 771, 779 (2004) (citing Cal. Welf. & 12 Inst. Code, § 15657). Abuse includes “physical abuse, neglect, 13 financial abuse, abandonment, isolation, abduction, or other 14 treatment with resulting physical harm or pain or mental 15 suffering” or the “deprivation of care by a care custodian of 16 goods or services that are necessary to avoid physical harm or 17 mental suffering.” Cal. Welf. & Inst. Code, § 15610.07. Neglect 18 requires a showing that a defendant: (1) was responsible for 19 meeting the basic needs of the elder or dependent; (2) knew of 20 conditions that made the elder or dependent unable to tend to 21 their own basic needs; and (3) denied or withheld goods or 22 services. Carter v. Prime Healthcare Paradise Valley LLC, 198 23 Cal. App. 4th 396, 406 (2011). 24 A plaintiff must demonstrate a level of culpability beyond 25 simple, gross, or professional negligence. Id. at 405, 408. 26 Oppression, fraud, and malice involve “intentional, willful, or 27 conscious wrongdoing of a despicable or injurious nature,” while 28 recklessness involves “deliberate disregard of the high degree of 1 probability that an injury will occur.” Id. The Ninth Circuit 2 has expressed that the Elder Abuse Act concerns the complete 3 “failure to provide medical care,” including “egregious” conduct 4 such as repeated or flagrant failures to provide care. Flores by 5 & through Clark v. United States, 780 F. App'x 420, 422 (9th Cir. 6 2019). The Court finds that Plaintiff has failed to allege that 7 the Veterans Affairs-San Francisco Medical Center staff engaged 8 in any behavior consistent with recklessness, oppression, fraud, 9 or malice. Plaintiff has consistently stated that she is 10 asserting negligent misconduct by the medical staff in their care 11 of Decedent, which is insufficient to maintain this cause of 12 action. The references to cardiology staff turning off the heart 13 defibrillator used on Decedent, the presence of skin sores on 14 Decedent’s body, and Decedent experiencing pain from those sores 15 fail to sufficiently demonstrate the state of mind of the medical 16 staff, such that the right to relief does not rise beyond the 17 speculative level. In the absence of the non-conclusory, factual 18 allegations necessary to sustain this claim, the Court dismisses 19 this claim without prejudice. 20 2. Second Motion to Dismiss 21 Defendant’s argument against Plaintiff’s eleventh cause of 22 action in the Second FAC alleging a violation of the Elder Abuse 23 Act is identical to its argument towards the First FAC; Defendant 24 argues that this clam should be dismissed for failure to state a 25 claim upon which relief can be granted because Plaintiff has only 26 alleged the negligent provision of care towards Decedent by the 27 Veterans Affairs-Martinez Outpatient Clinic staff. Second Mot. 28 at 4. Plaintiff responds that Defendant is liable for an Elder 1 Abuse Act violation because Defendant’s staff at the Martinez 2 clinic: (1) violated the Elder Abuse Act’s provisions; (2) were 3 negligent per se in their treatment of Decedent; and (3) were 4 traditionally negligent under tort law. Second Opp’n ¶ 54. 5 Plaintiff outlines Decedent’s alleged mistreatment at the clinic, 6 namely that Decedent: (1) fell twice; (2) lost approximately ten 7 pounds; (3) experienced worsening skin sores; (4) experienced 8 more general pain and discomfort; and (5) was sent to different 9 hospitals twice. Id. ¶ 55. 10 Consistent with its ruling in Defendant’s favor on 11 Plaintiff’s first Elder Abuse Act claim, the Court, again, finds 12 Defendant’s argument carries the day. As discussed above, the 13 Ninth Circuit has expressed that the Elder Abuse Act concerns the 14 complete “failure to provide medical care,” including “egregious” 15 conduct such as repeated or flagrant failures to provide care. 16 Flores, 780 F. App'x at 422. The Court finds that Plaintiff has 17 failed to allege that the Veterans Affairs-Martinez Outpatient 18 Clinic staff completely failed to provide medical care or engaged 19 in any behavior consistent with recklessness, oppression, fraud, 20 or malice. As with her other Elder Abuse Act claim, Plaintiff 21 continues to assert merely negligent misconduct by the medical 22 staff in their care of Decedent, which is insufficient to 23 maintain this cause of action. In the absence of the non- 24 conclusory, factual allegations necessary to sustain this claim, 25 the Court dismisses this claim without prejudice. 26 3. Remaining Issues 27 In both of its motions to dismiss, Defendant asks the Court 28 to dismiss Plaintiff’s prayers for punitive damages and 1 prejudgment interest, arguing that the FTCA does not allow such 2 damages against Defendant. First Mot. at 6-7, Second Mot. at 4. 3 Plaintiff responds that punitive damages and other enhanced 4 remedies are permitted under California state law and are 5 routinely awarded in actions involving the Elder Abuse Act. 6 First Opp’n ¶¶ 48-53. The Court finds Defendant to have the 7 better argument. 8 Punitive damages and prejudgment interest are remedies, not 9 claims, so they cannot be dismissed for failure to state a claim 10 upon which relief can be granted. Martinez v. Optimus Props., 11 LLC, No. 2:16-cv-08598-SVW-MRW, 2017 U.S. Dist. LEXIS 135395, at 12 *25 (C.D. Cal. Mar. 14, 2017). Such a motion will be construed 13 by the Court as a motion to strike the requests and will only be 14 granted “if it is clear from the face of the complaint that a 15 plaintiff is not entitled to such relief.” Id. at *26. 16 Plaintiff has brought all of her claims under the FTCA, which 17 completely precludes liability against Defendant for prejudgment 18 interest and punitive damages; even if local law allows for 19 punitive damages or awards greater than compensatory damages, 20 only compensatory damages may be awarded. 28 U.S.C. § 2674, 21 Felder v. United States, 543 F.2d 657, 669 (9th Cir. 1976). 22 Thus, the Court finds that Plaintiff is not entitled to punitive 23 damages and prejudgment interest, and grants Defendant’s motions 24 to strike Plaintiff’s requests for punitive damages and 25 prejudgment interest in the First and Second FAC. 26 27 III. ORDER 28 For the reasons set forth above, the Court GRANTS eee RE OIE II III OIE EI SISSIES 1 Defendant’s motions to dismiss and strike. Claims two and three 2 in the First FAC are DISMISSED WITH PREJUDICE. However, because 3 amendment may not be futile on the Elder Abuse Act claims, this 4 Court grants Plaintiff leave to amend these claims. Eminence 5 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 6 | 2003). 7 If Plaintiff elects to amend her complaints, she shall 8 consolidate the First and Second First Amended Complaints into 9 | one Second Amended Complaint to be filed within twenty days of 10 this Order. Defendant’s responsive pleading is due twenty days 11 thereafter. 12 IT IS SO ORDERED. 13 Dated: June 9, 2023 14 cp, JOHN A. MENDEZ 16 SENIOR UNITED*STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12