1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GORDON RISTIE, Case No. 25-cv-01221-TSH

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 UNITED STATES OF AMERICA, Re: Dkt. No. 27 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Gordon Ristie, who is representing himself, alleges medical malpractice 15 committed by Dr. Harrell-Bruder, a former employee of Naval Medical Center San Diego. 16 Pending before the Court is the government’s motion to dismiss pursuant to Federal Rule of Civil 17 Procedure 12(b)(1), in which the government argues the complaint must be dismissed because 18 Plaintiff did not exhaust his administrative remedies under the Federal Tort Claims Act (“FTCA”) 19 prior to filing the action. ECF No. 27. Plaintiff filed an Opposition (ECF No. 28) and the 20 government filed a Reply (ECF No. 30). For the reasons stated below, the Court GRANTS the 21 government’s motion. 22 II. MAGISTRATE JUDGE JURISDICTION 23 Both parties have filed consents to proceed before a magistrate judge pursuant to 28 U.S.C. 24 § 636(c). ECF Nos. 14, 18. However, on February 25, 2025, Plaintiff subsequently filed a 25 declination to proceed before a magistrate judge and request for reassignment to a district judge. 26 ECF No. 22. In Branch v. Umphenour, the Ninth Circuit held that a party’s consent may only be 27 withdrawn by a district judge for “good cause shown on its own motion, or under extraordinary 1 P. 73(b)(3) (“On its own for good cause--or when a party shows extraordinary circumstances--the 2 district judge may vacate a referral to a magistrate judge under this rule.”). As such, the Court 3 informed Plaintiff that if he sought to withdraw his consent to proceed before a magistrate judge, 4 he must file a motion to withdraw consent, which would be referred to the general duty judge for 5 resolution. ECF No. 33. As Plaintiff has failed to respond, the undersigned magistrate judge 6 retains the authority to rule on the merits of Defendant’s motion. 7 III. BACKGROUND 8 On October 21, 2024, Plaintiff filed a Complaint in Superior Court of California, County 9 of San Francisco against Dr. Harrell-Bruder, a former employee of Naval Medical Center San 10 Diego, asserting claims regarding care that Dr. Harrell-Bruder provided while serving as a staff 11 physician in the United States Navy in 1987. Compl., ECF No. 1-1; see also ECF No. 26 at 14-16 12 (original complaint attached to amended complaint as exhibit). On February 5, 2025, the action 13 was removed to this Court and the United States was substituted as the Defendant pursuant to the 14 Westfall Act, 28 U.S.C. § 2679(d).1 See ECF Nos. 1, 2. 15 On February 12, 2025, the government moved for dismissal under Rule 12(b)(1), arguing 16 Plaintiff failed to exhaust his administrative remedies. ECF No. 7. On February 14 Plaintiff 17 responded by filing a motion to amend. ECF No. 15. As there had been no previous amendment, 18 the Court construed his motion as an attempt to comply with Rule 15, granted his motion to 19 amend, and denied the government’s motion to dismiss without prejudice. ECF No. 25. 20 On March 19, 2025, Plaintiff filed a First Amended Complaint, alleging a “medical 21 malpractice” claim for acts taken by Dr. Harrell-Bruder. ECF No. 26 at 3, 5. Plaintiff states he is 22 a disabled veteran and alleges Dr. Harrell-Bruder breached the duty of care and “displayed a 23 willful and conscientious disregard for plaintiff’s safety and gross negligence, and civil rights 24

25 1 Under the Westfall Act, where the Attorney General of the United States (or their designee) certifies that a federal employee was acting within the scope of his or her office or employment at 26 the time of the incident giving rise to the claim against the employee, that claim shall be deemed an action against the United States, and the United States shall be substituted as sole defendant for 27 that claim. 28 U.S.C. § 2679(d)(1)-(2). The Attorney General’s designee (here, the Chief of the 1 violations and federal codes under California ethics code” based on events that took place in 1987. 2 Id. at 14. Plaintiff seeks damages in the amount of $350,000. Id. 3 The government filed the present motion to dismiss on April 2, 2025, again arguing 4 Plaintiff failed to exhaust the administrative remedies under the FTCA. 5 IV. LEGAL STANDARD 6 Federal district courts are courts of limited jurisdiction: “They possess only that power 7 authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen 8 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, “[i]t 9 is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing 10 the contrary rests upon the party asserting jurisdiction.” Id.; Chandler v. State Farm Mut. Auto. 11 Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 12 Rule 12(b)(1) authorizes a party to move to dismiss a lawsuit for lack of subject matter 13 jurisdiction. A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 14 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court determines whether the 15 allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, 16 accepting all material allegations in the complaint as true and construing them in favor of the party 17 asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is factual, 18 however, “the court need not presume the truthfulness of the plaintiff’s allegations.” Safe Air for 19 Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject matter 20 jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a 21 motion to dismiss into one for summary judgment. Id.; McCarthy v. United States, 850 F.2d 558, 22 560 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and 23 testimony, to resolve factual disputes concerning the existence of jurisdiction”). 24 Dismissal of a complaint without leave to amend should only be granted where the 25 jurisdictional defect cannot be cured by amendment. Eminence Cap., LLC v. Aspeon, Inc., 316 26 F.3d 1048, 1052 (9th Cir. 2003). 27 1 V. DISCUSSION 2 “The FTCA is the exclusive mode of recovery for the tort of a Government employee.” 3 M.J. ex rel. Beebe v. United States, 721 F.3d 1079, 1084 (9th Cir. 2013) (citation and quotation 4 omitted). “[T]he FTCA bars claimants from bringing suit in federal court until they have 5 exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). 6 The present complaint itself is insufficient to exhaust these remedies, as “filling a lawsuit does not 7 constitute an administrative claim required by the FTCA.” Bishop v. Mazda Motor of Am., Inc., 8 2012 WL 5383293, at *4 (N.D. Cal. Nov. 1, 2012). 9 Plaintiff does not allege he filed an administrative tort claim, and none of the documents 10 attached to the amended complaint constitute an administrative tort claim. As such, Plaintiff 11 cannot invoke the jurisdiction of this Court. See Avery v. United States, 680 F.2d 608, 610 (9th 12 Cir. 1982) (“A claim is properly presented to an agency within the meaning of 28 U.S.C. § 13 2675(a) when the agency is given sufficient written notice to commence investigation, and the 14 claimant places a value on the claim.”); 28 C.F.R. § 14.2 (Congress authorized the Attorney 15 General to promulgate regulations further defining the administrative claim requirement, including 16 that a claimant must execute a “Standard Form 95 or other written notification of an incident 17 accompanied by a claim for money damages in a sum certain for injury to [claimant].”). 18 In his opposition, Plaintiff does not deny he failed to exhaust his administrative remedies. 19 Instead, he contends he is “in a position of the risk of filing false claim act under FTCA as there is 20 no evidence of the defendant being a medical doctor or physicians as a federal employee.” Opp’n 21 at 1. Plaintiff appears to contend Dr. Harrell-Bruder was not acting within the scope of her federal 22 employment at the time she provided medical care to him in 1987. However, he does not bring a 23 claim directly against Dr. Harrell-Bruder and, even if he attempted to do so, any such effort would 24 be meritless because the Attorney General’s designee has certified that Dr. Harrell-Bruder was 25 acting within the scope of her federal employment with the United States Navy. See ECF No. 2. 26 This determination is “conclusive unless challenged.” Saleh v. Bush, 848 F.3d 880, 889 (9th Cir. 27 2017). To rebut the certification, a plaintiff must “allege sufficient facts that, taken as true, would 1 omitted). 2 No allegation in the amended complaint (or document attached to the amended complaint) 3 disputes that Dr. Harrell-Bruder was acting within the scope of her Navy employment during the 4 relevant timeframe. Nor does the opposition itself, other than to request that Defendant provide 5 “the following exhibit presented in the request of evidence in any manner of licensing for the 6 procedures performed.” See Opp’n 1. But this flips the burden on its head, as Plaintiff “bears the 7 burden of presenting evidence and disproving” the scope certification. Saleh, 848 F.3d at 889; 8 Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011). Further, while Plaintiff argues there is no 9 evidence Dr. Harrel-Bruder acted as a federal employee, the records submitted by Plaintiff himself 10 are consistent with Dr. Harrell-Bruder being within the scope of her U.S. Navy employment in 11 1987. See Opp’n at 9 (document appearing to be medical record signed by “B.G. Harrell-Bruder, 12 LT [Lieutenant], MC [Medical Corps]”); id. at 10 (same); id. at 12 (“Report of Radiologic 13 Consultation” listing “DR” as “Harrell-Bruder, B Lt Mc [Medical Corps] Usnr [U.S Naval 14 Reserve]”). Thus, even if the Court were to accept Plaintiff’s allegations as true, Dr. Harrel- 15 Bruder’s conduct still stems from her employment with the United States Navy. See Wilson v. 16 Drake, 87 F.3d 1073, 1076 (9th Cir. 1996) (Under California’s “broad definition” of scope of 17 employment, “even tortious conduct that violates an employee’s official duties or disregards the 18 employer’s express orders may nonetheless be within the scope of employment.”). Accordingly, 19 Plaintiff’s argument that Dr. Harrell-Bruder was not acting within the scope of her federal 20 employment—without any supporting evidence or well-pleaded factual allegations—cannot defeat 21 the United States’s scope certification. See Saleh, 848 F.3d at 889; Ward v. Gordon, 999 F.2d 22 1399, 1404 (9th Cir. 1993) (military physician was properly certified within the scope of 23 employment when providing medical care as physician “acted precisely and only as the 24 government expected and required him to act.”); Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 25 784 (N.D. Cal. 2016) (The scope of employment analysis “asks whether ‘in the context of the 26 particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair 27 to include the loss resulting from it among other costs of the employer’s business.”). For these 1 As the Court has already granted Plaintiff leave to amend, and Plaintiff failed to cure this 2 jurisdictional defect, the Court finds further leave to amend would be futile. 3 VI. CONCLUSION 4 For the reasons stated above, the Court GRANTS the government’s motion to dismiss 5 WITH PREJUDICE. The Court shall enter a separate judgment, after which the Clerk of Court 6 shall terminate this matter. 7 IT IS SO ORDERED. 8 9 Dated: June 24, 2025 10 AAV. |}-4 _

THOMAS S. HIXSON

11 United States Magistrate Judge a 12

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