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Gillman v. United States of America

United States District Court, D. Hawaii

March 13, 2017





         Plaintiff Zachary Ryan Gillman (“Plaintiff”), proceeding pro se, asserts that the United States Department of Veterans Affairs (the “VA” or “Defendant”) acted improperly in order to falsely document and misdiagnose Plaintiff's mental health, and failed to correct “fake and or falsified mental health information” in Plaintiff's medical records. Am. Compl. ¶ III.B.B., ECF No. 6. Currently before the court is Defendant's Motion for Summary Judgment (“Motion”). ECF No. 27. Based on the following, the court GRANTS the Motion as to Plaintiff's Privacy Act claims, construes the Amended Complaint as asserting a tort claim under the Federal Tort Claims Act (“FTCA”), and DISMISSES the Amended Complaint with leave to amend the FTCA claim.


         On January 10, 2014, Plaintiff submitted a Patient Amendment Request to the VA to correct information Plaintiff believes is inaccurate in his “mental health record.” Def.'s Concise Statement of Facts (“CSF”) ¶¶ 1, 2, ECF No. 28; Def.'s Ex. “A, ” ECF No. 28-2. The VA's then-privacy officer, Bert Thornburg, sought and obtained responses from each of Plaintiff's health care providers who prepared an allegedly inaccurate medical record. Def.'s CSF ¶¶ 3-8; Thornburg Decl. ¶¶ 4-8. By letter dated February 25, 2014, Mr. Thornburg responded to Plaintiff, informing him that one record was amended to correct an admission date, but that all other requests for correction were denied, based on the providers' determinations that the information in the records is accurate. Def.'s CSF ¶¶ 6-9; Def.'s Ex. “M” (the “February 25 response”), ECF No. 28-14. The February 25 response also informed Plaintiff that he could appeal the VA's partial denial of his Amendment Request by submitting a written appeal to the Office of General Counsel (“OGC”) in Washington, D.C. Def.'s CSF ¶ 10; Def.'s Ex. “M.” The February 25 response also provided additional instructions regarding such an appeal, including (1) the OGC's address, (2) that Plaintiff needed to include a copy of the February 25 response with his appeal, and (3) that Plaintiff should state why he disagreed with the VA's determination. Id.

         According to Plaintiff, he both appealed the February 25, 2014 response to the OGC and sent a “tort packet.” Pl.'s Opp'n at 2 (“Plaintiff . . .appeal[ed] the denial of his privacy act request to the [OGC], and, by sending tort packet at same time.”); see also Pl.'s CSF ¶ 1, ECF No. 30-1 (“Plaintiff followed careful procedures with all filings within the VA system [relating to] privacy officers [and] tort claims[.]”). The documents Plaintiff provided to support his assertion, however, show that: (1) on March 10, 2014, the VA Regional Counsel in San Francisco received Plaintiff's FTCA tort claim, Pl.'s Ex., VA Letter dated March 4, 2014 (the “March 4 letter”), ECF No. 30-2[1]; (2) the VA denied that claim on August 22, 2014, Pl.'s Ex, OGC letter dated November 19, 2014 (the “November 19 letter”), ECF No. 30-3; (3) on November 10, 2014, Plaintiff requested reconsideration of the August 22 denial of his FTCA claim, id.; and (4) on July 8, 2015, the OGC denied reconsideration of Plaintiff's FTCA claim, Pl.'s Ex., OGC letter dated July 8, 2015 (the “July 8 OGC letter”), ECF No. 6-1. The July 8 OGC letter explained that the OGC's denial applied only to Plaintiff's claim for damages under the FTCA, and that if Plaintiff wished to pursue a claim to correct his records, he may do so under the Privacy Act. Id. Further, the July 8 OGC letter informed Plaintiff that he could pursue his FTCA claim by filing an action in federal court within six months. Id. (citing 28 U.S.C. § 2401(b)). Plaintiff also provided a letter from the VA's Sierra Pacific Network (“SPN”), also dated July 8, 2015 (the “July 8 SPN letter”), acknowledging correspondence from Plaintiff regarding “the accuracy of [his] medical record.” Pl.'s Ex., July 8 SPN letter, ECF No. 6-2. The July 8 SPN letter states that after review conducted in accordance with policy, the VA determined that it “appropriately documented [Plaintiff's] care.” Id.

         On January 4, 2016, Plaintiff filed the instant action seeking damages of $5 -10 million and injunctive relief to correct falsified mental health information in his medical records. Compl. ¶¶ IIIB.B(1)- (3), V, ECF No. 1. The Complaint asserted jurisdiction under 28 U.S.C. § 2401(b) and 18 U.S.C. § 1519. Id. ¶ II. On January 7, 2016, this court dismissed the Complaint for lack of jurisdiction and failure to state a claim, finding that neither statute provides a civil cause of action -- § 1519 is an inapplicable criminal statute and § 2401(b) is merely a statute of limitations for a claim under the FTCA. Order Dismissing Complaint at 6-7, ECF No. 5. The court explained that even if it construed the Complaint to assert a claim under the FTCA, as set forth in 28 U.S.C. §§ 1346(b) and 2675(a), it would fail because Plaintiff did not allege “compliance with the FTCA's administrative exhaustion requirement.” Id. at 7. The court granted Plaintiff leave to amend to attempt to cure the deficiencies of the Complaint. Id. at 9.

         On January 28, 2016, Plaintiff filed an “Amended Complaint and Injunction” (“Amended Complaint”). ECF No. 6. The Amended Complaint realleges that Plaintiff's medical records contain “fake and or falsified mental health information, ” and that VA doctors acted inappropriately to document and justify Plaintiff's mental health diagnosis.[2] Id. ¶ III. Plaintiff alleges that Defendant's failure to correct his medical records has prevented him from “pursuing professional mixed martial arts career, as well as professional career of new car/old car repair and restoration as well as other professional career fields, ” each of which “could have equaled hundreds of thousands of dollars into the millions of dollars.” Id. ¶ IV. The Amended Complaint seeks damages of nine million dollars and a plethora of injunctive relief, including corrections to Plaintiff's medical records. Id. ¶ V. The Amended Complaint alleges that Plaintiff has exhausted all administrative actions, and asserts jurisdiction under 5 U.S.C.§ 552. Id. ¶¶ II, III.B.B. (4). Because Plaintiff seeks amendment of his medical records rather than access to public records, however, the court construed the Amended Complaint as asserting a claim under the Privacy Act, 5 U.S.C. § 552a, and not the Freedom of Information Act, 5 U.S.C. § 552. See Order Directing Service of Process (“Service Order”) at 1, ECF No. 7. On December 27, 2017, Defendant filed the instant Motion. ECF No. 27. Plaintiff filed an Opposition on February 10, 2017, ECF No. 30, and Defendant filed a Reply on February 17, 2017, ECF No. 31. A hearing was held on March 6, 2017.


         A. Summary Judgment

         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor” (citations omitted)).

         B. Sua Sponte Dismissal

         Under Rule 12(b)(6), the court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate where a complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes that all factual allegations are true and draws reasonable inferences from them. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Further, “[a] trial court may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (internal quotation marks and citation omitted); see also Barnard v. U.S. Gov't, 635 F. App'x 388, 388 (9th Cir. 2016) (determining that district court properly dismissed complaint sua sponte because the “claims lacked any arguable basis in law or fact”); see also Baker v. Dir., U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding that district court may dismiss cases sua sponte pursuant to Rule 12(b)(6) without notice where plaintiff could not prevail on complaint as alleged).

         C. ...

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