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Peek v. United States

United States District Court, W.D. Washington, Tacoma

April 24, 2018

JOHN PEEK, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the United States' Motion to Dismiss Plaintiff's Amended Complaint. Dkt. 12. The Court has considered the pleadings filed regarding the motion and remaining record, and is fully advised.

         On November 17, 2017, Plaintiff filed this case asserting negligence claims under the Federal Torts Claims Act, 28 U.S.C. § 2671 et. seq., (“FTCA”). Dkt. 1. Defendant now moves to dismiss pursuant to Fed.R.Civ.P. 12 (b)(1), arguing that this Court is divested of jurisdiction to consider Plaintiff's claims pursuant to the Veterans' Judicial Review Act, 38 U.S.C. § 511. Dkt. 12. For the reasons provided below, the Motion (Dkt. 12) should be granted, in part, and denied, in part.

         I. FACTS AND PROCEDURAL HISTORY

         According to the First Amended Complaint, in the spring of 2013, Plaintiff was treated by doctors at the U.S. Department of Veterans Affairs (“VA”) for a right foot ulcer. Dkt. 10. Due to his inability to care for himself and stay off his feet, on May 3, 2013, Plaintiff's VA foot doctor recommended that he be admitted to a VA Community Living Center (“CLC”). Id., at 2. The request for admission was denied. Id.

         On the advice, recommendation and request of his VA foot doctor, Plaintiff again applied to be admitted to the CLC on May 13, 2013. Id. The request for admission to the CLC was denied. Id.

         Wound care for Plaintiff's foot ulcer continued. Id., at 3. In August of 2013, Plaintiff developed a left foot ulcer. Id. A third request for admission to the CLC was made and denied. By August 23, 2013, both foot ulcers were worse. Id.

         On the advice, recommendation and request of his VA foot doctor, Plaintiff again applied to be admitted to the CLC on September 10, 2013, which was denied. Id. He was finally admitted to the CLC in early October 2013. Id.

         On November 7, 2013, a radiograph was taken, which revealed a bone infection. Id. On January 13, 2014, Plaintiff's left leg was amputated below the knee. Id. On February 14, 2014, his right foot's first metatarsal head was removed. Id.

         Plaintiff's Amended Complaint asserts that:

         The VA was negligent in one or more of the following particulars:

(a) Failing to follow the advice, recommendations, orders and requests of Plaintiff's treating foot doctor and healthcare provider to place [Plaintiff] in a setting where he would be able to stay off of his feet;
(b) Failing to adequately and appropriately treat [Plaintiff] for his foot ulcers;
(c) Failing to adequately and appropriately treat [Plaintiff] for his ...

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