1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 DAVID LOCKMILLER, No. C 19-04554 WHA 11 Plaintiff, 12 v. ORDER DISMISSING AMENDED COMPLAINT 13 UNITED STATES, et al., 14 Defendants. / 15 16 In this tort action, pro se plaintiff David Lockmiller sues defendants based on alleged 17 violations of the Federal Tort Claims Act (FTCA),

(b), 2671–80 and state law 18 (Dkt. No. 10 at 7–10). A prior order issued by Judge Sallie Kim granted plaintiff’s application 19 to proceed in forma pauperis and dismissed the complaint for failure to state a claim under 28

(e) (Dkt. No. 4).* That order gave plaintiff leave to amend the complaint by 21 September 16 (id. at 1), which plaintiff timely filed (Dkt. No. 10). 22 The following facts are taken from plaintiff’s amended complaint. Plaintiff alleges that 23 he purchased a “tainted lamb roast at Bryan’s Market in San Francisco” (id. at 4). On October 24 3, 2017, after consuming said meat and “[w]ithin hours of going to bed,” plaintiff vomited and 25 realized he was paralyzed in both legs (ibid.). Two days later, plaintiff called the “Nurse Aide 26 hotline” and was told to visit the Veterans Affairs hospital (ibid.). Plaintiff accuses Dr. Harry 27 Han (his emergency room treating physician) of failing to make a “finding of a suspect food 28 1 borne illness” and thus failed to make a report “to the local health authorities as required by 2 state law to do so” (Dkt. No. 10 at 5). That is, though Dr. Han diagnosed plaintiff’s illness as 3 “Infectious Gastroenteritis and Dehydration,” plaintiff believes that “Bacillus cereus of the 4 emetic toxin type” instead caused his symptoms, which should have been reported (id. at 5; 5 Exh. C at 3). 6 Plaintiff thus asserts the following claims, as liberally construed: (1) violation of 7 Sections 1346(b) and 2671–80 of the FTCA for failure to report his “food borne illness” to the 8 “San Francisco Department of Public Health – Environmental Health Branch” under California 9 Code of Regulations, Title 17 § 2500(b), against Drs. Han and Jonathan Garber (the “Chief of 10 the San Francisco VA Hospitable Emergency Department”) and the United States; and (2) 11 negligence and other state law claims against Bryan’s for his medical injury (presumably for 12 selling the meat at issue) (Dkt. No. 10 at 7–16). 13 When a plaintiff proceeds in forma pauperis under Section 1915, a court must conduct a 14 preliminary screening of plaintiff’s complaint and dismiss any claims that (1) are frivolous or 15 malicious; (2) fail to state a claim upon which relief can be granted; or (3) seek monetary relief 16 from a defendant who is immune from such relief.

(e)(2)(B). A complaint 17 fails to state a claim upon which relief can be granted when it does not “state a claim to relief 18 that is plausible on its face,” Bell Atl. Corp. v. Twombly,

(2007), even when 19 the court takes “all allegations of material fact as true and construes them in the light most 20 favorable” to plaintiff, Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S.,

1202, 1205 (9th Cir. 2007). Pro se pleadings must be liberally construed. See Balisteri v. 22 Pacifica Police Dep’t,

(9th Cir. 1990). “A pro se litigant must be given leave 23 to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint 24 could not be cured by amendment.” Noll v. Carlson,

(9th Cir. 1987), 25 superseded on other grounds by statute as stated in Lopez v. Smith,

, 1126–27 26 (9th Cir. 2000) (en banc). A court, however, “is not required to accept legal conclusions cast in 27 the form of factual allegations if those conclusions cannot reasonably be drawn from the facts 28 alleged.” Clegg v. Cult Awareness Network,

, 754–55 (9th Cir. 1994). 1 Here, a prior screening order issued by Judge Kim dismissed the instant action for lack 2 of subject-matter jurisdiction and failure to state a claim. Specifically, that order found a lack 3 of diversity jurisdiction because both plaintiff and Bryan’s reside in California (Dkt. No. 4 at 2). 4 That order further found a lack of federal question jurisdiction, as plaintiff failed to adequately 5 state a federal claim. The amended complaint fails to cure any of the deficiencies highlighted in 6 that prior order. 7 Plaintiff brought this complaint under the FTCA, alleging that Dr. Han failed to report 8 his “food borne illness” as purportedly required under California Code of Regulations, Title 17 9 § 2500(b). Section 2500(b) provides in relevant part that: 10 It shall be the duty of every health care provider, knowing of or in attendance on a case or suspected case of any of the diseases or conditions 11 listed in subsection (j) of this section, to report to the local health officer for the jurisdiction where the patient resides as required in subsection (h) of 12 this section. 13 Section 2500(j) in turn lists the specific diseases and conditions that “[h]ealth care providers 14 shall submit reports for.” As Judge Kim pointed out, neither infectious gastroenteritis or 15 “Bacillus cereus” infection is listed in Section 2500(j). Thus neither Dr. Han did not have a 16 duty to report plaintiff’s symptoms. 17 In his amended complaint, plaintiff points to Section 2500(a)(13), which defines 18 “foodborne disease” as “illness suspected to have resulted from consuming a contaminated 19 food, non-water beverage, or other ingestible item such as a dietary supplement or herbal 20 remedy.” Plaintiff asserts that “foodborne disease” is a “general term that encompasses a 21 number of specific illnesses with distinctly different causes, and these causes are specifically 22 listed in authoritative medical reference sources available to all Emergency Room physicians” 23 (Dkt. No. 10 at 15). He thus complains of Judge Kim’s analysis and reasserts that defendants 24 had a duty to report his “food borne illness.” This order disagrees. 25 Section 2500(a) merely provides governing definitions for various terms. Those 26 definitions, by themselves, do not provide any affirmative duties. Thus only the specific 27 diseases and conditions listed in Section 2500(j) remain relevant to the question of whether Dr. 28 Han had a duty to report plaintiff’s symptoms under Section 2500(b). For the reason stated 1 above, he did not. As such, even assuming that Dr. Han erroneously diagnosed plaintiff’s 2 symptoms, he still had no duty to report plaintiff’s illness under Section 2500(b). 3 Plaintiff also alleges that Dr. Garber had a duty under Section 2500(c), which provides 4 that: 5 The administrator of each health facility, clinic or other setting where more than one health care provider may know of a case, a suspected case 6 or an outbreak of disease within the facility shall establish and be responsible for administrative procedures to assure that reports are made 7 to the local health officer. 8 No defendant had a duty to report under this subsection either. Sections 2500(a)(5) defines 9 “case” as: 10 (A) a person who has been diagnosed by a health care provider, who is lawfully authorized to diagnose, using clinical judgment or laboratory 11 evidence, to have a particular disease or condition listed in subsection (j); or (B) a person who is considered to have a disease or condition that 12 satisfies the most recent communicable disease surveillance case definitions established by the CDC and/or CSTE; or (C) an animal that has 13 been determined, by a person authorized to do so, to have a disease or condition made reportable by these regulations; or (D) a person who has 14 been diagnosed with HIV infection using a currently approved HIV test algorithm, as defined in section 2641.57. 15

(a)(5) (emphasis added). Section 2500(a)(25) defines “suspected 16 case” as, in relevant part, a person whom a health care provider believes “probably” has “a 17 particular disease or condition listed in subsection (j).” And, Section 2500(a)(22) defines 18 “outbreak” as “the occurrence of cases of a disease (illness) above the expected or baseline 19 level, usually over a given period of time, in a geographic area or facility, or in a specific 20 population group.” None of these definitions covers plaintiff’s alleged illness. Plaintiff thus 21 failed to allege facts supporting his theory of liability under the FTCA. 22 Because plaintiff has already been advised of his pleading deficiencies and only doubled 23 down on those deficiencies in his amended complaint, this order finds that granting further 24 leave to amend would be futile. See Nunes v. Ashcroft,

(9th Cir. 2004) 25 (“Futility alone can justify the denial of a motion for leave to amend.”); In re Vantive Corp. Sec.

F.3d 1079, 1097–98 (9th Cir. 2002), abrogated on other grounds as recognized in 27 South Ferry LP, No. 2 v. Killinger,

(9th Cir. 2008) (“The district court’s 28 discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.”). Accordingly, plaintiff's claims against all defendants are DISMISSED without leave to amend. 3 4 IT IS SO ORDERED. 5 Dated: September 27, 2019. f A Sf bene WILLIAM ALSUP 7 UNITED STATES DISTRICT JUDGE 8 9 10 1] E 12 5 15 5 16

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