Opinion
Case No. 3:19-cv-01983-AC
01-07-2020
JAMES W. FRANSON II, Plaintiff, v. US DEPT. OF VETERANS AFFAIRS, Portland VAMC/CEOC; DANIEL HOONYUL BANG, MD, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff James W. Franson II ("Franson") filed this lawsuit pro se against Defendants US Department of Veterans Affairs ("VA") and Daniel Hoonyul Bang, MD ("Dr. Bang") (collectively, "Defendants"). (Compl., ECF No. 2 ("Compl.").) Franson also filed an application with the court to proceed in forma pauperis ("IFP"), which was granted. (ECF Nos. 1, 4.) For the reasons that follow, the court recommends the Complaint be dismissed. /////
Background
Franson, a VA benefits recipient, filed this lawsuit on December 6, 2019. The Complaint is difficult to decipher, but appears to bring claims for medical malpractice, breach of contract, and libel stemming from the Defendants' decision to discontinue the use of opioids in the treatment of Franson's chronic pain. Specifically, the Complaint alleges that in 2011, a VA physician prescribed Franson opioids for pain management despite Franson's admission that he consumed cannabis. (Compl., at 1-2.) In the years that followed, the physician continued to prescribe opioids for Franson's pain, and presumed Franson would test positive for Tetrahydrocannabinol ("THC"), the primary psychoactive ingredient in cannabis, in any drag screenings conducted by the VA. (Compl., at 2.) In 2015, Dr. Bang assumed responsibility for Franson's care. (Id.) Dr. Bang did not immediately conduct an in-person consultation to evaluate Franson, but nevertheless refused to continue the opioid regimen in light of Franson's continued cannabis use. (Id.) Franson therefore was given no choice "but to quit cannabis to continue opioid therapy." (Id.) Franson "refused [Dr.] Bang's requirement," and opioids were no longer prescribed to manage Franson's pain. (Id.) At the same time, the "SoCal Regional VA" adopted a new "cannabis/opiate" policy that was never implemented by the regional VA in the Pacific Northwest. (Id. at 3, 5.) Though the Complaint alleges this new policy exists, a copy of the policy is not attached to the Complaint, nor is its substance communicated in the body of the Complaint. (Id.)
Because the Complaint contains inconsistently numbered paragraphs, the court cites the accordant page numbers.
Franson alleges his original physician's willingness to prescribe opioids despite his cannabis use constitutes a "valid opioid contract" that was subsequently violated by Dr. Bang. (Id. at 5.) Further, Franson contends Dr. Bang's refusal to continue the opioid regimen without evaluating him in person is "a violation of medical ethics and a true case of malpractice[.]" Franson alleges all subsequent physicians overseeing his care have "compounded the problem by including LIBEL in Plaintiff's medical records[] in order to justify the revocation of the previously existing opioid agreement[.]" (Id. at 2-3.) Finally, Franson seeks to have "the [policy] changes adopted by the SoCal VA to be forcefully applied to the rest of the VA regions by federal court order" because "VA should [not] be allowed to have different policies in different regions of the US[.]" (Id. at 3.)
Discussion
The federal IFP statute, 28 U.S.C. § 1915 ("Section 1915"), permits an indigent litigant to forego the administrative costs associated with initiating and prosecuting a lawsuit in federal court. Denton v. Hernandez, 504 U.S. 25, 27 (1992). In drafting Section 1915, Congress recognized that a litigant who is not required to shoulder the financial burden of litigating may lack "an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at 324. To temper such abuses, Section 1915(e) authorizes a district court to dismiss those complaints where the action or appeal "[1] is frivolous or malicious; [2] fails to state a claim on which relief may be granted; or [3] seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A complaint filed in forma pauperis may be dismissed at any time, including before service of process, thereby "spar [ing] prospective defendants the inconvenience and expense of answering" such complaints. Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (section 1915(e) applies to all IFP complaints, not just those filed by inmates); Preciado v. Salas, No. 1:13-cv-00390, 2014 WL 127710, at *1 (E.D. Cal. Jan. 14, 2014) ("The Court is required to screen complaints brought by plaintiffs proceeding pro se and in forma pauperis.").
As the Ninth Circuit has instructed however, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A complaint filed pro se "'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Lopez, 203 F.3d at 1130-31.
I. Lack of Jurisdiction
Courts must dismiss those cases over which it lacks subject matter jurisdiction and may do so sua sponte. FED. R. CIV. P. 12(h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500,514 (2006). Franson asserts the basis for the court's jurisdiction is federal question, identifying 38 U.S.C. § 1703(c) and 38 U.S.C. § 7316 as statutory predicates for all claims alleged. (Compl., at 4.) Alternatively, Franson also asserts the court has civil rights and elective franchise jurisdiction pursuant to 28 U.S.C. § 1343. (Id.)
A. Federal Question Jurisdiction
28 U.S.C. § 1331 ("Section 1331") grants district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." That federal courts are vested with such jurisdiction, however, "does not mean that all federal courts may exercise jurisdiction over all such civil actions." Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1019 (9th Cir. 2012). Indeed, Congress is free to limit the jurisdiction of federal courts through "such Exceptions, and under such Regulations as the Congress shall make." U.S. Const. art. III, § 2, cl. 2.
The Veterans' Judicial Review Act, Pub. L. No. 100-687, div. A 102 Stat. 4105 (1988) ("VJRA"), codified at various sections of Title 38, poses an exception to the broad jurisdictional authority conferred by Section 1331. The VJRA places the exclusive responsibility for review of decisions made by VA Regional Offices or the Board of Veterans' Appeals with the United States Court of Appeals for Veterans Claims ("Veterans' Court"). 38 U.S.C. § 7252(a), 7261; see also VCS, 678 F.3d at 1021. The authority enjoyed by the Veterans' Court extends to "'all questions involving benefits under laws administered by the VA . . . [including] factual, legal, and constitutional questions.'" VCS, 678 F.3d at 1021 (quoting H.R.Rep. No. 100-963, at 5, 1988 U.S.C.C.A.N. at 5786). Decisions of the Veterans' Court may be reviewed only by the United States Court of Appeals for the Federal Circuit. 38 U.S.C. § 7292.
In addition to vesting exclusive authority to review VA decision-making with the Veterans' Court and the Federal Circuit, the VJRA explicitly precludes other courts from hearing "all questions of law and fact necessary to a decision . . . that affects the provision of benefits[.]" 38 U.S.C. § 511(a). Specifically, district courts cannot review "VA decisions that relate to benefits decisions, including any decision made during the course of making benefits determinations." VCS, 678 F.3d at 1025 (internal citations and quotations omitted); see also Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1175 (9th Cir. 2013) ("[A] district court does not have jurisdiction over claims that would require it to review a question of fact or law relating to or affecting veterans' benefits decisions"). "Benefits" include "any payment, service, . . . [or] status, entitlement to which is determined under law administered by the Department of Veterans Affairs pertaining to veterans[.]" VCS, 678 F.3d at 1026 (quoting 38 C.F.R. § 20.3(e)). Thus, in cases challenging VA decisions connected to the grant, denial, provision, or administration of benefits, "the district court is divested of jurisdiction that it otherwise might have exercised under 28 U.S.C. § 1331," and the Ninth Circuit is barred from appellate review. VCS, 678 F.3d at 1023.
As an initial matter, Franson's allegations concerning the failure of the VA Regional Office to adopt a new "cannabis/opioid" policy in the Pacific Northwest is precisely the kind of administrative decision that must be challenged in accordance with the VJRA. Though Franson does not identify the substance of the alleged policy, the court can infer from the allegations in the Complaint that the policy concerns the delivery of medical services to veterans — the adoption or denial of which undoubtedly concerns the provision of benefits, and thus stands beyond the jurisdiction of this court. Furthermore, for those claims "requir[ing] review of the circumstances of individual benefits requests, jurisdiction is lacking." Haas v. Oregon Health & Sci. Univ., No. CV-13-01290-PHX-GMS, 2014 WL 900726, at *2 (D. Ariz. Mar. 7, 2014). Therefore, insofar as Franson's allegations challenge the VA's refusal to honor his requests for opioids to treat his chronic pain while he continued to consume cannabis, the court lacks jurisdiction to review such claims and they should be DISMISSED.
B. Federal Tort Claims Act
Despite the narrow review procedures mandated by the VJRA, federal courts retain jurisdiction to hear certain claims brought by individual veterans pursuant to the Federal Tort Claims Act ("FTCA"). Tunac v. United States, 897 F.3d 1197, 1203 (9th Cir. 2018). Under the FTCA, district courts have "exclusive jurisdiction of civil actions on claims against the United 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 of his office or employment." 28 U.S.C. § 1346(b)(1). An individual veteran therefore may seek redress in the district court for injuries sustained as a result of a VA medical professional's breach of his or her duty of care, but may not seek remedy for administrative negligence in the provision of benefits, as such negligence must be addressed through the VJRA. See Tunac, 897 F.3d at 1205-06 (determining the court had jurisdiction over claims that VA employees caused the death of a veteran patient by failing to provide adequate monitoring and follow-up care, but lacked jurisdiction over claims alleging the death was caused by the VA's failure to timely schedule appointments and treatment); see also VCS, 678 F.3d at 1023 (quoting Littlejohn v. United States, 321 F.3d 915, 921 (9th Cir. 2003)) (reviewing a veteran's FTCA claim that alleged he was not provided with a timelyor correct diagnosis because doing so "would not 'possibly have any effect on the benefits [the veteran] has already been awarded'").
Franson contends Dr. Bang discontinued the use of opioid therapy to treat his chronic pain, that the decision has caused him to suffer pain, decreased mobility, and a lower quality of life, and that such decision constitutes medical malpractice. (Compl., at 4.) Further, Franson contends he has been the victim of libel at the hands of subsequent physicians employed by the VA. Even if Fransons's claims can be construed as claims arising under the FTCA rather than claims concerning benefits decisions, they must fail for two reasons. First, the FTCA "is the exclusive remedy for tortious conduct by the United States and it only allows claims against the United States." Fed. Deposit Ins. Corp. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998). Though the actions or inaction of federal agencies often give rise to such claims, the offending agency cannot be sued under the FTCA. Id. Franson fails to name the United States as the defendant, and instead names the VA and Dr. Bang. Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) ("A claim against [a federal agency] in its own name is not a claim against the United States"). Second, a plaintiff must first exhaust all administrative remedies, and "[t]he timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, and, as such, should be affirmatively alleged in the complaint." Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Franson alleges he "tried for nearly two years to work within the VA system," but stops short of affirmatively alleging he timely filed administrative notice of his claims with the VA. Thus, insofar as Franson asserts claims resounding in tort, those claims should be DISMISSED.
C. Civil Rights and Elective Franchise Jurisdiction
Any person who is deprived "of any rights, privileges, or immunities secured by the Constitution and laws" of the United States by an individual acting under the color of state law may seek redress through a civil action. 42 U.S.C. § 1983. Conspiracies to violate civil rights are also actionable. 42 U.S.C. § 1985. Federal jurisdiction for such actions is conferred pursuant to 28 U.S.C. § 1343. See Lynch v. Household Finance Corp., 405 U.S. 538, 542 (1972) (noting 28 U.S.C. § 1343(3) is the "jurisdictional counterpart" of 42 U.S.C. § 1983); Alabama v. Express Capital Lending, No. CV 12-2017 GAF (VBKx), 2012 WL 1193707, at *2 (C.D. Cal Apr. 9, 2012) (determining the court lacked jurisdiction under 28 U.S.C. § 1343 where plaintiff asserted no civil rights claims pursuant to 42 U.S.C. § 1983 or § 1985).
Franson alleges the Complaint is not subject to the restrictive review mandated by the VJRA because it "addresses broad . . . civil rights concerns about the manner of delivery of health care services regarding pain relief." (Compl., at 4.) The Complaint, however, fails to identify any Constitutional or statutory rights of which Franson was deprived. Indeed, Franson does not allege the VA has deprived him of any benefit to which he is entitled, he simply takes issue with the particular course of treatment approved by his physician. The Constitution does not guarantee Franson's access to his preferred prescription, nor does any statutory scheme entitle Franson to health care that is delivered in the manner of his choosing. Thus, the Complaint, even liberally construed, contains no allegations giving rise to a claim under 42 U.S.C. § 1983 or 42 U.S.C. § 1985. Accordingly, this court does not have jurisdiction over this action pursuant to 28 U.S.C. § 1343.
II. Failure to State a Claim
Because Section 1915(e) is intended to curb the filing of frivolous lawsuits and the expenditure of resources attendant such suits, it "not only permits but requires" a court to dismiss, sua sponte, a complaint filed by an IFP plaintiff that fails to state a claim. Lopez, 203 F.3d at 1127. Cases appropriately in this category are those that are "based on an indisputably meritless legal theory" or include "claims of infringement of a legal interest which clearly does not exist." Neitzke, 490 U.S. at 327.
Franson alleges he had "a valid opioid contract with [his original VA physician] . . . which included [his] consumption of cannabis." (Compl., at 5.) That contract was subsequently "violated without cause by [Dr.] Bang." (Id.) None of the allegations set forth in the Complaint, however, indicate a contract existed between Franson and Defendants. Thus, the Complaint fails to state a viable claim for breach of contract and should be DISMISSED.
III. Leave to Amend
The court is mindful that "[u]nless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Obeng-Amponsah v. Don Miguel Apartments, 744 F. App'x 476, 477 (9th Cir. 2018). Here, Franson must be given leave to file an Amended Complaint so he may attempt to state a valid federal cause of action over which this court has jurisdiction. If Franson chooses to file an amended complaint, he is cautioned that he must identify the basis for the court's subject matter jurisdiction and allege specific facts in support of his claims. Further, he is advised that failure to cure the deficiencies will result in dismissal of this action.
Conclusion
Based on the foregoing, Plaintiff's Complaint (ECF No. 2) should be DISMISSED. Any pending motions should be DISMISSED as MOOT. The court recommends that the district judge dismiss Plaintiff's complaint with leave to amend within 30 days of the district judge's order of dismissal to file an amended complaint curing the deficiencies noted above. The court further recommends that the district judge advise Plaintiff that failure to file an amended complaint which cures the deficiencies noted shall result in the dismissal of this proceeding, with prejudice. ////// ////// ////// ////// ////// ////// ////// ////// //////
Scheduling Order
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.
DATED this 7th day of JANUARY, 2020.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge