Abbott v. United States et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANNA MARIE ABBOTT, on behalf of
N.C.D., 	N.C.D. 	mother 	of 	deceased
Clifford Anthony Durgan,
Plaintiff,
vs.
UNITED STATES, et al.,
Defendants.
Case No. 1:19-cv-00014-TMB
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND [DKT. 17];
GRANTING DEFENDANT’S MOTION
TO DISMISS [DKT. 5]; AND
DENYING DEFENDANT’S MOTION
TO STRIKE [DKT 19]
I. 	INTRODUCTION
The matter comes before the Court on Defendant the United States’ Motion
to 	Dismiss 	All 	Claims 	Against 	the 	United 	States 	for 	Lack 	of 	Administrative
Exhaustion and as Barred by the Statute of Limitations (“Motion to Dismiss”).1 After
the Court issued two Orders to Show Cause,2 Plaintiff Anna Marie Abbott filed a
response, which the Court construes as an Opposition to the Motion to Dismiss
(“Opposition”).3 The United States filed a Reply.4 Plaintiff then filed an “Opposition
Motion to Dismiss and Motion Leave to Amend Complaint” (“Motion to Amend”)
and Second Amended Complaint, to which the United States filed a Motion to
1 Docket 5 (Motion to Dismiss).
2 Dockets 13 (Order to Show Cause); 14 (Final Order to Show Cause).
3 Docket 15 (Opposition).
4 Docket 16 (Reply).
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Strike.5 The Motion to Dismiss is now fully briefed and the Motion to Amend is ripe
for decision. The Court finds that the matter is suitable to disposition without oral
argument. For the reasons discussed below, the Motion to Amend is GRANTED,
the Motion to Dismiss is GRANTED, the Motion to Strike is DENIED, and this case
is REMANDED to the state court.
II. 	BACKGROUND
On August 16, 2019, Plaintiff filed a Complaint related to the death of her
son, Clifford Anthony Durgan, in the Superior Court for the State of Alaska in
Juneau, Alaska.6 A 	week 	later, Plaintiff filed 	an 	“Amended Wrongful Death
Complaint” (“Amended Complaint”).7 Mr. Durgan had passed away nearly two
years before, on August 17, 2017.8 Taken together, the Complaint and Amended
Complaint 	raise 	wrongful 	death 	claims 	against 	various 	medical 	providers,
healthcare entities, and Wildflower Court, a long-term nursing home.9 With the
exception of Wildflower Court, all other defendants are deemed federal employees
5 Dockets 17 (Motion to Amend); 18 (Second Amended Complaint); 19 (Motion to Strike).
6 Docket 1-1 (Complaint).
7 Docket 1-2 (Amended Complaint).
8 Docket 1-2 at 2.
9 Dockets 1-1; 1-2.
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who were acting within the scope of their employment at all times relevant to
Plaintiff’s allegations.10
Accordingly, on October 2, 2019, the United States, on behalf of the federal
defendants, 	removed 	the 	action 	from 	state 	court 	to 	this 	Court.11 	On
October 3, 2019, the United States filed the present Motion to Dismiss, arguing
that Plaintiff failed to exhaust administrative remedies prior to filing this action.12
The United States further argues that the time to file an administrative claim has
passed.13 	The 	United 	States 	therefore 	moves 	under 	Federal 	Rules 	of 	Civil
Procedure 12(b)(1) and 12(b)(6) to dismiss Plaintiff’s claims against the federal
defendants for lack of jurisdiction.14
Hearing no response from Plaintiff, the Court issued an Order to Show
Cause on December 13, 2019 and a Final Order to Show Cause on January 15,
2020.15 The Orders advised that if Plaintiff failed to respond to the Motion to
10 Docket 5 at 3.
11 Docket 1 (Notice of Removal). To date, Wildflower Court has not made an appearance
in this case.
12 Docket 5 at 3‒5.
13 Id. at 5‒7.
14 Id. at 7.
15 Docket 13 (Order to Show Cause); Docket 14 (Final Order to Show Cause).
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Dismiss, the Court may dismiss this case under Federal Rule of Civil Procedure
41(b) for failure to prosecute or failure to comply with a court order.16
On January 21, 2020, the Court received Plaintiff’s Opposition to the
Motion.17 	The 	Opposition 	concedes 	that 	Plaintiff 	“erred 	in 	not 	filing 	with
administration before” filing the action in state court.18 Nonetheless, Plaintiff
asserts that she “still filed [the Complaint] with Alaska Court System before the
statutes of limitations had reached.”19 Plaintiff further explains that her “lack of
understanding the courts procedures and lacking in representation has caused
[her] error for not filing [her] complaint with administration first and the time spent
in researching the laws terminology, law procedures and practices has caused
[her] untimely filing answers responding to defendants motions.”20
The United States’ Reply disputes that Plaintiff’s lack of understanding is
enough to avoid dismissal.21 The Reply repeats that this Court lacks jurisdiction
over the claims, which Plaintiff concedes are unexhausted.22 Moreover, the United
16 Id.
17 Docket 15.
18 Id. at 1.
19 Id.
20 Id.
21 Docket 16 at 2.
22 Id.
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States contends that any attempt to raise the claims administratively at this time
would be futile.23 Therefore, the United States argues all claims against the United
States should be dismissed with prejudice.24
On February 19, 2020, Plaintiff filed the Motion to Amend.25 In the Motion to
Amend, Plaintiff states, “Motion to leave to amend complaint and proceed on
negligence per se theory against Wildflower Court long-term nursing home and its
entities. Dismissing defendants Southeast Regional Health Consortium and its
providers Emily Bos and Keegan Jackson Alaska Native Medical Center and its
providers Dr. Wells, Scoti Hinds and Roland Hurrel under Alaska Statute medical
malpractice suit.”26 Plaintiff also acknowledges that there is no private right of
action under what Plaintiff refers to as the “Federal Nursing Home Reform Act.”27
III. 	LEGAL STANDARD
As a threshold matter, the Court liberally construes Plaintiff’s filings. When
challenged by a motion to dismiss, pro se filings “must be ‘liberally construed,’ and
‘however inartfully pleaded, must be held to less stringent standards than formal
23 Id. at 2-3.
24 Id. at 3.
25 Docket 17.
26 Id. at 2.
27 Id.
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pleadings drafted by lawyers . . . .’”28 In doing so, courts must “use common sense
in interpreting the frequently diffuse pleadings of pro se complainants.”29
In this case, Plaintiff’s Motion to Amend appears to dismiss all claims against
the federal defendants and proceed only on a negligence claim against Wildflower
Court, which is not a federal entity. Under Federal Rule of Civil Procedure 41(a)(1),
a plaintiff may dismiss an action without a court order before the opposing party
serves an answer or a motion for summary judgment or by stipulation of all parties
who have appeared. An action may also be dismissed at the plaintiff’s request by
court order on terms that the court considers proper.30
In any event, the United States moves to dismiss Plaintiff’s claims under
Rules 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim upon
which relief can be granted.31 Under Rule 12(b)(1), it is the Plaintiff’s burden to
prove jurisdiction exists.32 The Court must resolve the jurisdiction issue before
28 Nicdao v. Chase Home Fin., 839 F. Supp. 2d 1051, 1061 (D. Alaska 2012) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
29 McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974).
30 Fed. R. Civ. P. 41(a)(2).
31 Docket 5.
32 Rattlesnake Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007).
See also Alaska v. Kerry, 972 F. Supp. 2d 1111, 1120 (D. Alaska 2013); Alaska v. Jewell,
No. 4:13-cv-00034-SLG, 2014 WL 3778590, at *2 (D. Alaska July 29, 2014).
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determining whether the complaint states a claim under Rule 12(b)(6).33 Moreover,
as the Court has previously advised, this Motion to Dismiss must be treated as a
motion for summary judgment under Federal Rule of Civil Procedure 56.34 Finally,
a court is justified in dismissing without leave to amend “where a plaintiff’s
proposed 	amendments 	would 	fail 	to 	cure 	the 	pleading 	deficiencies 	and
amendment would be futile.”35
IV. 	ANALYSIS
A. 	Plaintiff’s Motion to Amend
As explained above, it appears Plaintiff seeks to voluntarily dismiss all
federal defendants as well as her claim against Wildflower Court premised on
federal nursing home regulations.36 The United States has yet to file an answer or
a motion for summary judgment. Accordingly, under Rule 41(a)(1), Plaintiff’s
33 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998).
34 Docket 12 at 2; Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.”); Stratton
v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952 (9th Cir.
1998) (en banc).
35 Nicdao, 839 F. Supp. 2d at 1063 (quoting Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1041 (9th Cir.2011)).
36 See Docket 17 at 2.
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Motion to Amend is GRANTED and the federal defendants and federal claim
against Wildflower Court are DISMISSED.
B. 	The United States’ Motion to Dismiss
In the event Plaintiff’s Motion to Amend has been misconstrued,37 Plaintiff’s
claims against the federal defendants should nonetheless be dismissed, as
discussed below.
1. 	Application of the Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et seq.,
allows the United States to be sued for “certain torts of federal employees acting
within the scope of their employment.”38 However, the FTCA sets forth procedures
and deadlines a plaintiff must follow before filing a lawsuit in federal court. The
FTCA requires a plaintiff file an administrative claim with the appropriate federal
agency within two years of the claim’s accrual.39 The agency then has six months
to make a final decision on the administrative claim.40 Only after the agency issues
37 Plaintiff’s Second Amended Complaint at Docket 18 names “U.S.” as a defendant in
the caption and references individual federal employees in the factual background. As a
result, it is unclear whether Plaintiff intended to dismiss the claims against the federal
defendants.
38 United States v. Orleans, 425 U.S. 807, 813 (1976).
39 28 U.S.C. § 2675(a); 28 U.S.C. § 2401(b).
40 28 U.S.C. § 2675(a).
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a final denial, or fails to do so within six months, can a plaintiff file a complaint in
federal court.41
2. 	The Court Must Dismiss the Claims Against the United States for
Lack of Jurisdiction
The United States’ Motion to Dismiss under Rule 12(b)(1) for lack of
jurisdiction must be granted. The FTCA’s administrative exhaustion requirement is
jurisdictional and may not be waived.42 That means, if a plaintiff has not exhausted
the administrative claims process, a federal court does not have jurisdiction to hear
the claims.43 Here, the United States asserts and Plaintiff concedes that Plaintiff
has not exhausted administrative remedies.44 Therefore, Plaintiff cannot establish
that jurisdiction is proper in this Court and the claims against the United States
must be dismissed under Rule 12(b)(1).
In addition, the time to present administrative claims has passed and
equitable tolling does not apply to extend the deadline. The two-year statute of
limitations began running on Plaintiff’s wrongful death claims the day Mr. Durgan
41 Id.
42 D.L. by and through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017) (citing Jerves
v. United States, 966 F.2d 517, 519 (9th Cir. 1992)).
43 See Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995) (rejecting joinder of
a party that has failed to exhaust its administrative remedies and thus has not satisfied
the jurisdictional prerequisites of the FTCA).
44 Dockets 5 at 4; 15 at 1.
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died, August 17, 2017.45 Even though Plaintiff filed this action in state court one
day before the limitations period ended, as noted above, Plaintiff did not present
an administrative claim during that time.46 The pendency of this suit may offer
tolling but only as to the one day left in the limitations period.47 Plaintiff also does
not argue and the circumstances do not appear to warrant equitable tolling to allow
Plaintiff to file an administrative claim past the limitations period.48 The Court is
sympathetic to Plaintiff’s lack of legal sophistication and inability to find counsel but
those are not extraordinary circumstances that justify tolling.49 Finally, a stay to
allow administrative exhaustion is improper here. Once a court determines that it
lacks jurisdiction, “the court must dismiss the action.”50 Therefore, the Plaintiff’s
claims against the United States must be dismissed without prejudice.51
45 28 U.S.C. § 2401(b).
46 Docket 1-1.
47 Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“We have allowed equitable
tolling in situations where the claimant has actively pursued [her] judicial remedies by
filing a defective pleading during the statutory period”).
48 In order to equitably toll the FTCA statute of limitations, a plaintiff must establish that
(1) 	she 	has 	been 	diligently 	pursuing 	her 	rights 	and 	(2) 	that 	some 	extraordinary
circumstances stood in the way. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir.
2013).
49 See Peter v. United States, No. 2014 WL 12605470, *4 (D. Alaska Dec. 17, 2014).
50 Fed. R. Civ. P. 12(h)(3).
51 Because Plaintiff filed this action one day before the statute of limitations expired,
Plaintiff may still be able to file an administrative claim against the federal defendants.
The Court does not take a position on whether the pendency of this action tolled the
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Accordingly, the United States’ Motion to Dismiss is GRANTED. Plaintiff has
one day of the limitations period remaining to attempt to exhaust her administrative
remedies. Therefore, the claims against the federal defendants are dismissed
without prejudice.
C. 	The Court Must Dismiss the Claim Against Wildflower Court
Plaintiff’s 	Complaint 	and 	Amended 	Complaint 	raise 	claims 	against
Defendant 	Wildflower 	Court, 	a 	long-term 	nursing 	home 	and 	not 	a 	federal
defendant.52 Plaintiff appears to allege that Wildflower Court violated the federal
requirements for nursing facilities under 42 U.S.C. § 1396r, as well as several
Alaska state statutes.53 Plaintiff acknowledges and various courts have held that
provisions of the Social Security statute, which includes 42 U.S.C. § 1396r, do not
provide a private cause of action.54 That means individuals cannot sue private
nursing homes for alleged violations of 42 U.S.C. § 1396r. This is a defect that
limitations period in order to file such an administrative claim.
52 See Dockets 1-1; 1-2.
53 Id.
54 Docket 17 at 2; Davis v. Cal. Health and Human Serv. Agency, No. C 00-CV-2532 SBA
ADR, 2001 WL 1772763, at *1 (N.D. Cal. Aug. 21, 2001) (citing Bumpus v. Clark, 681 F.2d
679, 682 (9th Cir. 1982), opinion withdrawn as moot, 702 F.2d 826 (9th Cir. 1983); Wheat
v. Mass, 994 F.2d 273, 276 (5th Cir. 1993); Stewart v. Bernstein, 769 F.2d 1088, 1092–94
(5th Cir. 1985); Estate of Ayres v. Beaver, 48 F. Supp.2d 1335, 1339–40 (M.D. Fla. 1999);
Nichols v. St. Luke Center of Hyde Park, 800 F. Supp. 1564, 1567–68 (S.D. Ohio 1992)).
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cannot be cured by amendment.55 Regardless of Plaintiff’s voluntary dismissal,
Plaintiff’s federal claim against Wildflower Court must be dismissed with prejudice
under Federal Rule of Civil Procedure 12(b)(6).56
V. 	CONCLUSION
Plaintiff’s Motion to Amend at Docket 17 is GRANTED. The United States’
Motion at Docket 5 is GRANTED. The United States’ Motion to Strike at Docket 19
is DENIED AS MOOT. IT IS FURTHER ORDERED:
1. Due to the coronavirus pandemic, by Miscellaneous General Order 20-
11, the District of Alaska imposed a stay on all civil matters for 30 days,
effective March 30, 2020. As the presiding judge in this matter, the
undersigned VACATES the stay in this case to allow entry of this Order;
2. All 	claims 	against 	the 	United 	States 	are 	DISMISSED 	WITHOUT
PREJUDICE;
3. The claim based on 42 U.S.C. § 1396r against Defendant Wildflower
Court is DISMISSED WITH PREJUDICE; and
55 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
56 Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6). Such a dismissal may be made
without notice where the claimant cannot possibly win relief.”).
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4. Because Plaintiff’s federal claims are dismissed in this case, this Court
does not have jurisdiction to hear the remaining claims that are based on
Alaska state law.57 Accordingly, the remaining claims against Wildflower
Court are REMANDED to the Superior Court for the State of Alaska.
DATED this 10th day of April, 2020 at Anchorage, Alaska.
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
57 See 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental
jurisdiction . . . if (3) the district court has dismissed all claims over which it has original
jurisdiction.”).
/s/ Timothy M. Burgess
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