Lockmiller v. United States

Background

David Lockmiller, representing himself, brought a tort action against the United States, Dr. Harry Han, Dr. Jonathan Garber, and Bryan’s. He invoked the Federal Tort Claims Act, a law that allows certain claims for injury caused by federal employees, and asserted state-law claims. The court had previously allowed him to proceed without paying filing fees and dismissed his original complaint during required screening under 28 U.S.C. § 1915. Judge Sallie Kim gave him permission to amend, and Lockmiller timely filed an amended complaint.

Lockmiller alleged that he bought a “tainted lamb roast at Bryan’s Market in San Francisco.” After eating it, he vomited and became paralyzed in both legs. He alleged that Dr. Han, who treated him in an emergency room, failed to identify and report a suspected foodborne illness to local health authorities. Lockmiller believed that his symptoms were caused by “Bacillus cereus of the emetic toxin type,” rather than the infectious gastroenteritis and dehydration diagnosed by Dr. Han. He also alleged that Dr. Garber, identified as the chief of the San Francisco VA Hospital Emergency Department, had reporting responsibilities, and he asserted negligence and other state-law claims against Bryan’s.

Court’s analysis

Because Lockmiller proceeded without paying filing fees, the court screened the amended complaint under 28 U.S.C. § 1915(e). The court could dismiss claims that were frivolous, failed to state a legally valid claim, or sought money from an immune defendant. The court also noted that the earlier order had found no diversity jurisdiction because Lockmiller and Bryan’s resided in California, and no federal-question jurisdiction because the original complaint did not adequately state a federal claim.

The court concluded that the amended complaint did not correct those problems. California Code of Regulations, title 17, section 2500(b), requires health care providers to report cases or suspected cases of diseases and conditions listed in section 2500(j). The court held that neither infectious gastroenteritis nor a Bacillus cereus infection was listed there. It rejected Lockmiller’s reliance on section 2500(a)(13), which defines “foodborne disease,” because the definitions in section 2500(a) do not themselves create reporting duties.

The court also rejected the claim against Dr. Garber under section 2500(c), which concerns procedures for reporting cases, suspected cases, or outbreaks at health facilities. The court found that the definitions of “case,” “suspected case,” and “outbreak” did not cover Lockmiller’s alleged illness. It therefore concluded that Lockmiller had not alleged facts supporting liability under the Federal Tort Claims Act.

Disposition

The court found that Lockmiller had already been told about the pleading problems and had repeated them in his amended complaint. It determined that allowing another amendment would be futile. Judge William Alsup ordered that Lockmiller’s claims against all defendants be dismissed without leave to amend.