(PS) Hedrington v. David Grant Medical Center ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLONZO HEDRINGTON, No. 2:22-cv-0074 KJM DB PS 12 Plaintiff, 13 v. 14 DAVID GRANT MEDICAL CENTER, et. ORDER AND al., FINDINGS AND RECOMMENDATIONS 15 16 Defendants. 17 18 Plaintiff Orlonzo Hedrington is proceeding in this action pro se. This matter was referred 19 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 20 Pending before the undersigned are plaintiff’s motion to proceed in forma pauperis, requests for 21 discovery, requests to appear at hearings via Zoom, and defendant David Grant Medical Center’s 22 motion to dismiss. (ECF Nos. 2, 4, 9, 11, 12, 17 & 18.) 23 Having considered the parties’ briefing, and for the reasons stated below, the undersigned 24 will deny plaintiff’s motions and recommend that the motion to dismiss be granted without leave 25 to amend. 26 //// 27 //// 28 //// 1 BACKGROUND 2 Plaintiff, proceeding pro se, commenced this action on January 10, 2022, by filing a 3 complaint and a motion to proceed in forma pauperis.1 (ECF Nos. 1 & 2.) On March 22, 2022, 4 however, plaintiff paid the applicable filing fee.2 The complaint alleges that on January 22, 2016, 5 plaintiff was sexually assaulted at the David Grant Medical Center. (Compl. (ECF No. 1) at 7.3) 6 The complaint alleges generally that employees of defendants David Grant Medical Center at 7 Travis Air Force Base and the City of Fairfield Police Department “intentionally and negligently 8 failed to properly investigate” plaintiff’s claims. (Id. at 8-9.) The complaint asserts a single 9 cause of action for violation of 42 U.S.C. § 1983. (Id. at 10.) 10 On March 23, 2022, plaintiff filed a request for discovery. (ECF No. 4.) On April 25, 11 2022, plaintiff filed another request for discovery. (ECF No. 9.) On April 26, 2022, defendant 12 David Grant Medical Center (“DGMC”) filed a motion to dismiss pursuant to Rule 12(b)(1) of 13 the Federal Rules of Civil Procedure.4 (ECF No. 11.) On April 29, 2022, plaintiff filed another 14 request for discovery. (ECF No. 12.) On May 24, 2022, defendant’s motion was taken under 15 submission. (ECF No. 14.) 16 On May 31, 2022, and June 2, 2022, plaintiff filed requests to appear at a hearing via 17 Zoom. (ECF No2. 17 & 18.) On June 3, 2022, and June 7, 2022, plaintiff filed oppositions to 18 defendant’s motion to dismiss.5 (ECF Nos. 19 & 21.) Defendant filed a reply on June 27, 2022. 19 20 1 Although plaintiff filed this action in the Fresno Division the matter was transferred to this Court on January 12, 2022. (ECF No. 3.) 21 2 Because plaintiff paid the applicable filing fee, plaintiff’s motion to proceed in forma pauperis 22 will be denied as having been rendered moot. 23 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 24 system and not to page numbers assigned by the parties. 25 4 Defendant City of Fairfield Police Department has not appeared in this action nor has plaintiff filed proof of service on that defendant. 26 27 5 Local Rule 230 does not permit the filing of serial oppositions. However, in light of plaintiff’s pro se status the undersigned has consider all of plaintiff’s filings in evaluating defendant’s 28 motion to dismiss. 1 (ECF No. 22.) Plaintiff filed more oppositions on July 12, 2022, August 3, 2022, October 17, 2 2022, October 26, 2022, October 28, 2022, November 1, 2022, and November 14, 2022. (ECF 3 Nos. 24, 26-33.) 4 STANDARDS 5 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(1) 6 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 7 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 8 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 9 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 10 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 11 594 F.2d 730, 733 (9th Cir. 1979). 12 When a party brings a facial attack to subject matter jurisdiction, that party contends that 13 the allegations of jurisdiction contained in the complaint are insufficient on their face to 14 demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 15 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards 16 similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 17 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 18 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted 19 only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. 20 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v. 21 Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts “may review 22 evidence beyond the complaint without converting the motion to dismiss into a motion for 23 summary judgment” when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039. 24 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no 25 presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 F.2d 26 at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 27 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 28 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 1 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 2 of establishing that such jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 3 ANALYSIS 4 I. Defendant DGMC’s Motion to Dismiss 5 Defendant’s motion argues that the complaint’s claim against defendant DGMC must be 6 dismissed for a lack of subject matter jurisdiction. (Def.’s MTD (ECF No. 11-1) at 2.) Review of 7 defendant’s motion finds that the motion is supported by the applicable law and should be 8 granted. 9 In this regard, as noted above the complaint alleges a claim for violation of 42 U.S.C. § 10 1983. § 1983 provides that, 11 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation 12 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 13 in equity, or other proper proceeding for redress. 14 Here, defendant DGMC is not a person but instead is part of a federal agency, specifically 15 the United States Air Force. (Def.’s MTD (ECF No. 11-1) at 2.) “[A] federal agency is not a 16 ‘person’ within the meaning of” § 1983. Jachetta v. U.S., 653 F.3d 898, 908 (9th Cir. 2011). 17 Accordingly, “a federal agency is . . . excluded from the scope of section 1983 liability.” 18 Hoffman v. U.S. Dept. of Housing and Urban Development, 519 F.2d 1160, 1165 (5th Cir. 1975); 19 see also Peoples v. Navy Board Annex, No. 2:19-cv-2253 TLN AC PS, 2020 WL 1923166, at *2 20 (E.D. Cal. Apr. 21, 2020) (“The Navy Board Annex is a federal agency, not a state actor that may 21 be sued under § 1983.”). 22 Accordingly, the undersigned finds that defendant’s motion to dismiss should be granted.6 23 II. Leave to Amend 24 For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned 25 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 26 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 27 28 6 In light of this finding plaintiff’s various motions will be denied without prejudice to renewal. 1 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 2 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 3 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 4 court does not have to allow futile amendments). 5 Here, in addition to the defects notes above, it would appear that plaintiff’s § 1983 claim 6 based on events occurring in 2016 would also be barred by the applicable statute of limitations. 7 In this regard, § 1983 does not contain a specific statute of limitations. “Without a federal 8 limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal 9 injury actions, along with the forum state's law regarding tolling, including equitable tolling, 10 except to the extent any of these laws is inconsistent with federal law.’” Butler v. National 11 Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. 12 Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927 13 (9th Cir. 2004). Effective January 1, 2003, in California that limitations period became two 14 years. See Cal. Code Civ. P. § 335.1. 15 Moreover, “[i]t is well established that a district court has broad discretion to control its 16 own docket, and that includes the power to dismiss duplicative claims.” M.M. v. Lafayette 17 School Dist., 681 F.3d 1082, 1091 (9th Cir. 2012). “Dismissal of the duplicative lawsuit, more so 18 than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the 19 ‘comprehensive disposition of litigation.’” Adams v. California Dep’t of Health Servs., 487 F.3d 20 684, 692 (9th Cir. 2007) (citation omitted), overruled on other grounds by Taylor v. Sturgell, 553 21 U.S. 880, 904 (2008). 22 To determine whether a claim is duplicative, courts use the test for claim preclusion. 23 Adams, 487 F.3d at 688. “Thus, in assessing whether the second action is duplicative of the first, 24 [courts] examine whether the causes of action and relief sought, as well as the parties or privies to 25 the action, are the same.” Id. at 689 (citations omitted). “Plaintiffs generally have no right to 26 maintain two separate actions involving the same subject matter at the same time in the same 27 court and against the same defendant.” Id. at 688 (internal quotation marks and citations 28 omitted). 1 Here, on June, 16, 2022, this action was related to the earlier filed actions Peter L. Fear v. 2 United States of America, No. 2:18-cv-233 KJM DB7, and Orlonzo Hedrington v. United States 3 of America, et al., No. 2:31-cv-0414 KJM DB PS, as the matters involve similar questions of fact 4 and the same question of law. (ECF No. 20 at 2.) Review of the complaints filed in those actions 5 finds that the matters are so similar that they concern the same factual allegations, defendant, 6 causes of action, and relief sought. 7 Accordingly, for the reasons stated above, the undersigned finds that granting plaintiff 8 leave to amend would be futile. 9 III. Defendant Fairfield Police Department 10 On April 8, 2022, the Court issued plaintiff a letter advising, in relevant part, that Rule 11 4(m) of the Federal Rules of Civil Procedure provides that a defendant must be dismissed if 12 service of the summons and complaint is not accomplished on the defendant within 90 days after 13 the complaint was filed. Here, well over 90 days have passed since the complaint was filed and 14 summons issued. (ECF Nos. 1 & 5.) Nonetheless, plaintiff has failed to provide proof of service 15 on defendant Fairfield Police Department. 16 Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of 17 good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a 18 showing of excusable neglect. 19 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 20 F.3d 1188, 1198 (9th Cir. 2009)). Here, plaintiff has shown neither good cause nor excusable 21 neglect. 22 CONCLUSION 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s January 10, 2022 motion to proceed in forma pauperis (ECF No. 2) is denied 25 as having been rendered moot; 26 27 7 Peter L. Fear was substituted in place of plaintiff Orlonzo Hedrington as the Trustee of the Chapter 7 Bankruptcy Estate of Orlonzo Hedrington. Peter L. Fear v. United States of America, 28 No. 2:18-cv-233 KJM DB (June 30, 2021). 1 2. Plaintiff’s March 23, 2022 request for discovery (ECF No. 4) is denied without 2 prejudice; 3 3. Plaintiff’s April 25, 2022 request for discovery (ECF No. 9) is denied without 4 prejudice; 5 4. Plaintiff’s April 29, 2022 request for discovery (ECF No. 12) is denied without 6 prejudice; 7 5. Plaintiff’s May 31, 2022 request for Zoom hearing (ECF No. 17) is denied without 8 prejudice; 9 6. Plaintiff’s June 2, 2022 request for Zoom hearing (ECF No. 18) is denied without 10 prejudice; and 11 7. Plaintiff shall show cause in writing within 14 days of the date of this order as to why 12 defendant City of Fairfield Police Department should not be dismissed for failure to comply with 13 Rule 4. 14 Also, IT IS HEREBY RECOMMENDED that: 15 1. Defendant David Grant Medical Center’s April 26, 2022 motion to dismiss (ECF No. 16 11) be granted; and 17 2. Defendant David Grant Medical Center be dismissed without prejudice due to a lack of 18 jurisdiction. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 24 shall be served and filed within fourteen days after service of the objections. The parties are 25 //// 26 ///// 27 //// 28 //// 1 | advised that failure to file objections within the specified time may waive the right to appeal the 2 | District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: November 22, 2022 4 5 6 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | DLB:6 DB/orders/orders.pro se/hedrington0414.mtd.f&rs 28