Reynoso v. Pascasio ( 2020 )

3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |) JUAN REYNOSO, Case No.: 20CV1425-GPC(LL) 12 Plaintiff, ORDER GRANTING THIRD PARTY 13 || Vv. UNITED STATES’ MOTION TO ae SUBSTITUTE IN PLACE OF □□□ ae nae naieals INDIVIDUAL DEFENDANTS AND 15 ° ; GRANTING UNITED STATES’ 16 Defendants.! MOTION TO DISMISS FOR FAILURE TO EXHAUST 17 ADMINISTRATIVE REMEDIES 18 [Dkt. No. 2.] 19 20 Before the Court is Third Party United States’ motion to substitute the United 21 || States as a defendant in place of the individual defendants Samuel Pascasio and Fely 22 || Cruz (erroneously sued as Faley Doe), and once substituted, the United States moves to 23 || dismiss the complaint for failure to exhaust administrative remedies. (Dkt. No. 2.) 24 || Plaintiff, proceeding pro se, did not file an opposition. Based on the reasoning below, the 25 ||Court GRANTS the United States’ motion to substitute itself in place of individual 26 || Defendants Samuel Pascasio and Fely Cruz (erroneously sued as Faley Doe) and 27 || GRANTS the United States’ motion to dismiss for failure to exhaust administrative 28 ||remedies. 20CV1425-GPC(LL) 1 Background 2 On July 24, 2020, the United States removed the case to this Court. On March 12, 3 || 2020, Plaintiff Juan Reynoso, proceeding pro se, initiated this action by filing a Request 4 || for Civil Harassment Restraining Orders in Case No. 37-2020-00013447-CU-HR-CTL in 5 the Superior Court for the State of California, County of San Diego alleging that 6 || Defendants Samuel Pascasio and Fely Cruz (erroneously sued as Faley Doe), while 7 ||employed by the Department of Veterans Affairs, negligently and wrongfully harmed 8 ||him. (Dkt. No. 1-2.) 9 Plaintiff alleges that on March 4, 2020, he went to the VA hospital for dialysis 10 |/treatment. (/d. at 9.') After he was on the dialysis machine for an hour, he started getting 11 ||muscle cramps and called out to Pascasio to help him stretch his muscles and relieve the 12 || pain, but instead, Pascasio changed the settings on the machine to a different profile 13 || purposefully to cause excruciating pain. (/d.) Plaintiff asked Pascasio to change the 14 || settings back and he complied but it was too late and his muscles were cramping for the 15 || duration of the treatment. (U/d.) He had to call the nurses three times to relieve the pain. 16 || (/d.) At the conclusion of the treatment, Pascasio sarcastically made comments about 17 || Plaintiff's pain and “pulled my catheter as a reference to our conflict in the past.” (/d.) 18 || Plaintiff explains that he and Pascacio have had an ongoing conflict for the past four or 19 || five years. Ud.) Plaintiff also alleges that “[e]ver [s]ince” he began “receiving dialysis 20 treatment at the VA hospital, the VA police, patient advocate, dialysis manager, and the 21 || charge nurse have influenced all of the nurses and technicians to retaliate against [him] to 22 || cause [him] excruciating pain.” (/d.) 23 Plaintiff further claims that Defendant Fely Cruz (erroneously sued as Faley Doe) 24 || “works with VA police” to commit police brutality against him whenever he asks the 25 ||/nurse not to change his settings. (/d. at 10.) She also walks away when he is in 26 }|_—_—_——_ 28 Ih Page numbers are based on the CM/ECF pagination. 20CV1425-GPC(LL) 1 || excruciating pain on the dialysis machine and no other nurses come to help him. 2 || According to Plaintiff, it is the VA’s policy to have a nurse check the dialysis machine 3 || every thirty minutes but Faley 1s neglectful and takes naps in the break room while he is 4 ||on the machine. (/d.) 5 Discussion 6 ||A. ‘Third-Party Motion to Substitute 7 The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b); 2671-2680 (“FTCA”) 8 || provides that a suit against the United States shall be the exclusive remedy for persons 9 || alleging damages resulting from the negligent or wrongful acts or omissions of federal 10 ||}employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1). 11 “Upon certification by the Attorney General that the defendant employee was 12 || acting within the scope of his office or employment at the time of the incident out of 13 || which the claim arose” any civil action in state court shall be removed by the Attorney 14 || General to the district court. 28 U.S.C. § 2679(d)(2). It further provides that any such 15 || civil action shall be deemed an action against the United States and the United States 16 || shall be substituted as the defendant. Jd. §§ 2679(d)(1)-(2). Assistant United States 17 || Attorney Brett Norris, Deputy Chief of the Civil Division, has certified that at the time of 18 || the conduct alleged, Samuel Pascasio and Fely Cruz (erroneously sued as Faley Doe) 19 || were acting within the scope of their employment as employees of the Department of 20 || Veterans Affairs. (Dkt. No. 1-3.) Because Plaintiff's negligent and wrongful claims 21 || against these federal employees arising within their scope of employment must be 22 || brought against the United States, the Court GRANTS Third-Party United States’ motion 23 || to substitute itself in place of Samuel Pascasio and Fely Cruz (erroneously sued as “Faley 24 Doe”). See Hui v. Castaneda, 559 U.S. 799, 801 (2010) (“When federal employees are 25 ||sued for damages for harms caused in the course of their employment, the Federal Tort 26 ||Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, generally authorizes substitution of 27 ||the United States as the defendant.”’). 28 |/// 20CV1425-GPC(LL) 1 ||B. Exhaustion 2 The FTCA “waives the sovereign immunity of the United States for actions in tort” 3 || and “vests the federal district courts with exclusive jurisdiction over suits arising from the 4 negligence of Government employees.” Jerves v. United States, 966 F.2d 517, 518 (9th 5 || Cir. 1992). However, before a plaintiff can sue a government employee under the FTCA 6 || for personal injuries due to negligent or wrongful conduct, one must exhaust the 7 || administrative remedies for the claim. 28 U.S.C. § 2675(a)*. The exhaustion 8 || requirement is jurisdictional and may not be waived. Jerves, 966 F.2d at 519; McNeil v. 9 || United States, 508 U.S. 106, 113 (1993) (describing exhaustion as a “clear statutory 10 ||}command”). Per section 2675(a), an administrative claim is deemed exhausted once the 11 agency finally denies it in writing, or if the agency fails to make a final disposition of the 12 clarm within six months of the claim’s filing. 28 U.S.C. § 2675(a). 13 Here, the Office of the General Counsel, Department of Veteran’s Affairs has 14 || searched its database and there is no record of an administrative tort claim filed by 15 || Plaintiff Juan Reynoso. (Dkt. No. 2-1, Hernandez Decl. {§ 2-4.) Because Plaintiff has 16 |/not alleged or shown he has exhausted administrative remedies and the Department of 17 || Veteran’s Affairs does not have a record of any claim, the Court GRANTS the United 18 || States’ motion to dismiss for failure to exhaust administrative remedies. 19 |j/// 20 |I/// 21 |f/// 22 || ——_—__—_ 24 |\2 28 U.S.C. § 2875(a) provides that “(a) An action shall not be instituted upon a claim against the United 25 || States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope 26 || of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by 27 || certified or registered mail. The failure of an agency to make final disposition of a claim within six 28 months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. § 2875(a). 20CV1425-GPC(LL) ] Conclusion 2 Based on the above, the Court GRANTS Third Party United States’ motion to 3 || substitute itself in place of individual Defendants Pascasio and Cruz and GRANTS 4 || United States’ motion to dismiss for Plaintiffs failure to exhaust administrative remedies. 5 || The Clerk of Court shall close the case. The hearing set on September 4, 2020 shall be 6 || vacated. 7 IT IS SO ORDERED. 8 || Dated: August 31, 2020 2 9 Hon. the Ok 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20CV1425-GPC(LL)