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Hoslett v. Dhaliwal

United States District Court, Ninth Circuit

November 6, 2013

RAYMOND JAMES HOSLETT, Plaintiff,
v.
JASPAL DHALIWAL, M.D., RAYMOND E. WESTERMEYER, M.D., and UNITED STATES, Defendants.

Judy Danelle Snyder, Law Offices of Judy Snyder, Portland, Oregon, Attorney for Plaintiff

S. Amanda Marshall, United States Attorney, District of Oregon.

Ronald K. Silver, Assistant United States Attorney, Portland, Oregon.

Eric J. Neiman, Rachel A. Robinson, Williams Kastner & Gibbs, PLLC, Portland, Oregon. Attorneys for Defendants.

OPINION AND ORDER

GARR M. KING, District Judge.

Plaintiff Raymond James Hoslett is incarcerated at FCI Sheridan. He alleges prison staff failed to properly treat his debilitating bladder disease and associated pain. Before the court is the United States' Motion to Dismiss FTCA Claim as Time-Barred [95].

FACTS

On April 21, 2011, the Bureau of Prisons received an Administrative Tort Claim Hoslett filed under the Federal Tort Claims Act ("FTCA") alleging a medical malpractice claim against several doctors and staff at FCI Sheridan for their roles in the treatment of his bladder disease.

On June 2, 2011, Hoslett, acting pro se, filed the case pending before me alleging Eighth Amendment claims for acting deliberately indifferent toward Hoslett's serious medical needs. The defendants are the same individuals named in the Administrative Tort Claim; the United States was not named as a defendant in this case.

On June 14, 2011, the BOP denied Hoslett's Administrative Tort Claim via certified mail. The denial warned Hoslett he had six months from the post-marked date of the letter to bring suit in federal court if he was unsatisfied with the denial.

On July 13, 2011, the first pro bono counsel accepted representation of Hoslett. On December 3, 2012, the court terminated the representation of the first pro bono counsel. Hoslett proceeded pro se.

On June 27, 2013, Hoslett, acting pro se, filed an Amended Complaint which I previously gave leave to file so Hoslett could add allegations against one of the individual defendants based on newly received discovery. Hoslett also added the United States as a defendant. The Amended Complaint alleges two causes of action against all three defendants, including the United States; the first is an Eighth Amendment violation and the second is under the FTCA and the Oregon Tort Claims Act, ORS 30.260-30.300. On July 24, 2013, the current pro bono counsel accepted representation of Hoslett.

LEGAL STANDARDS

An argument claiming lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id . In a factual attack, the court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Furthermore, the court is not required to ...


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