Elliott v. The Department of Veterens Affairs

Northern District of California, cand-4:2014-cv-02678

ORDER GRANTING PERMISSION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 4/2/14.

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 United States District Court VANCE S. ELLIOT, No. C 14-80009 RS 11 For the Northern District of California Plaintiff, 12 v. ORDER GRANTING PERMISSION TO PROCEED IN FORMA PAUPERIS 13 AND DISMISSING COMPLAINT THE DEPARTMENT OF VETERANS WITH LEAVE TO AMEND 14 AFFAIRS, 15 Defendant. 16 ____________________________________/ 17 18 In January 2014, plaintiff filed a complaint alleging slander against the Department of 19 Veterans Affairs. In an order issued January 27, 2014, Elliot's request to proceed in forma pauperis 20 was denied because his complaint was largely illegible. (ECF No. 3). Plaintiff then lodged an 21 amended complaint on February 4, 2014. (ECF No. 4). While parts of the new complaint are still 22 difficult to read, the document is sufficiently legible to communicate the legal theory underpinning 23 Elliot's claim. Elliot, a veteran of the Korean War, met with a psychiatrist employed at a VA 24 medical facility. According to the complaint, the VA psychiatrist diagnosed Elliot with 25 schizophrenia. She then entered his diagnosis into the VA medical database, "from which it could 26 be retrieved by anyone keying into his/her computer the last 4 digits of plaintiff's Social Security 27 Number[.]" (Compl. ¶ 3). This, Elliot claims, constitutes the tort of slander. 28 1 When a federal employee acts within the scope of his or her employment and commits a tort, 2 any relief for that tort must be sought against the United States under the Federal Tort Claims Act, 3 28 U.S.C. §§ 2671, et seq. Before a claimant can assert an FTCA claim in federal court, he must 4 first exhaust administrative remedies. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 5 (1993). In particular, he must present the claim "in writing to the appropriate Federal agency within 6 two years after such claim accrues." § 2401(b). If the agency denies the claim in writing, the 7 claimant can then file an FTCA action in federal court. Id. He must do so, however, within six 8 months of the administrative denial. Id. 9 Plaintiff has apparently failed to comply with the procedural requirements of the FTCA. 10 First, the complaint pleads no facts indicating that Elliot exhausted his administrative remedies United States District Court 11 before the VA. If he presented a claim in writing to the agency, no legible portion of his complaint For the Northern District of California 12 indicates as much. Second, even if Elliot filed an administrative claim with the VA, relief would be 13 barred unless said claim was lodged by May 2012. Third, assuming he did file a timely complaint 14 with the VA, this federal lawsuit would nonetheless be time-barred unless it was filed within six 15 months of the VA's written denial of his administrative claim. Because the complaint contains no 16 suggestion that Elliot exhausted his administrative remedies in a timely fashion, it must be 17 dismissed. See Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). 18 Plaintiff is granted leave to amend his complaint to the extent he can plead facts indicating 19 that he satisfied the FTCA's procedural requirements. Any amended complaint must be filed within 20 thirty (30) days of the date of this order. In the meantime, Elliot's request to proceed in forma 21 pauperis is granted. 22 23 IT IS SO ORDERED. 24 25 Dated: 4/2/14 RICHARD SEEBORG 26 UNITED STATES DISTRICT JUDGE 27 28 2 1 2 THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO: 3 Vance S. Elliott 4 640 Eddy Street, #219 San Francisco, CA 94109 5 6 DATED: 4/2/14 7 /s/ Chambers Staff 8 Chambers of Judge Richard Seeborg 9 10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3