Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 25cv0882 DMS (JLB) M NORMAN HAMMERLORD, 11 Plaintiff, ORDER DISMISSING COMPLAINT 12 v. WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM 13 SECRETARY DOUG COLLINS, UPON WHICH RELIEF CAN BE Department of Veteran Affairs; 14 GRANTED PURSUANT TO 28 U.S.C. DIRECTOR FRANK PEARSON, VA San § 1915(e)(2)(B)(ii) 15 Diego Healthcare System; YING WU MD, Primary Care VA San Diego, 16 Defendants. 17 18 19 20 Plaintiff is an 80-year-old disabled veteran who receives medical care through the 21 Department of Veterans Affairs (“VA”). (First Am. Compl. (“FAC”) at 5-6.) In July 2024, 22 Plaintiff went to the VA hospital in La Jolla, California, due to shortness of breath and 23 chest pain. (Id. at 7.) He was diagnosed with dyspnea and told to schedule a follow up 24 visit with his primary care physician (“PCP”). (Id.) 25 Plaintiff had a video appointment with his PCP Ying Wu, M.D. on September 1, 26 2024. (Id.) During that appointment, it appears Dr. Wu recommended Plaintiff try CPAP 27 therapy. (Id. at 8.) Plaintiff told Dr. Wu he did not have sleep apnea, and disagreed with 28 Dr. Wu’s recommendation. (Id.) Instead, he requested oxygen therapy. (Id.) Dr. Wu 1 disagreed that oxygen therapy was appropriate and declined to order it. (Id. at 9.) 2 Following that visit, Plaintiff sent a “Memorandum” to Dr. Wu documenting their visit, 3 asking why he was not receiving test results, and requesting that Dr. Wu reconsider her 4 approach to Plaintiff’s complaints. (Id. at 7-10.) 5 Plaintiff did not receive a response to his first “Memorandum”, and so on October 6 25, 2024, he sent Dr. Wu a “Request for Medical Care.” (Id. at 10-11.) He also sent a 7 copy of this Request to Frank Pearson, the Director of the VA La Jolla Medical Center. 8 (Id. at 11.) In that Request, Plaintiff reiterated his various medical concerns and the VA’s 9 failure to address those concerns to Plaintiff’s satisfaction. (Id.) Plaintiff also requested a 10 referral to community care outside the VA, copies of his medical records, and Dr. Wu’s 11 state medical license number. (Id. at 12.) 12 On October 30, 2024, Dr. Wu sent Plaintiff a response. (Id.) Plaintiff describes the 13 response as a “cover-up letter.” (Id.) In it, Dr. Wu advised Plaintiff how to obtain copies 14 of his medical records, and suggested he transfer his care to a different PCP. (Id. at 13.) 15 On November 6, 2024, Plaintiff sent another letter to Mr. Pearson with a copy to Dr. 16 Wu. (Id. at 13.) When Plaintiff did not receive a response to that letter he contacted the 17 VA hotline. (Id. at 15.) 18 Eventually Plaintiff had another visit with Dr. Wu on January 21, 2025. (Id. at 16.) 19 Plaintiff was dissatisfied with that visit, and again contacted the VA hotline. (Id.) He also 20 sent another letter to Mr. Pearson and former Secretary of Veterans Affairs Denis 21 McDonough. (Id. at 17.) 22 On March 10, 2025, Plaintiff filed a criminal complaint with the Commander of the 23 San Diego VA Police against Mr. Pearson and Dr. Wu. (Id.) On March 12, 2025, Plaintiff 24 filed a claim for damages against the VA in the amount of $7,502,000. (Id. at 18.) That 25 same day he also filed a consumer complaint with the California Medical Board against 26 Dr. Wu. (Id. at 19.) 27 After those filings, Plaintiff filed the present case against Doug Collins, Secretary of 28 Veterans Affairs, Mr. Pearson, and Dr. Wu alleging claims for violation of due process, 1 violation of Plaintiff’s civil rights, elder abuse, violation of the Americans with Disabilities 2 Act (“ADA”), and conspiracy to interfere with civil rights. (ECF No. 1.) On initial 3 screening pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court found Plaintiff had failed to 4 state a claim a claim against Defendants and dismissed the Complaint with leave to amend. 5 (ECF No. 5.) 6 After the initial Complaint was filed, Plaintiff met with a new PCP Jennifer Javors, 7 M.D. (FAC at 20.) Plaintiff alleges Dr. Javors and Dr. Wu share an office, and because 8 of that, Dr. Javors has a bias toward Plaintiff. (Id.) After that visit, Plaintiff went through 9 the same protocol he employed with Dr. Wu, i.e., he sent her letters documenting their visit 10 and requesting his medical records. 11 Having failed to receive a satisfactory response to those letters, Plaintiff proceeded 12 to file his FAC, in which he realleges his claims for due process violations and civil rights 13 conspiracy, elder abuse (although that claim now has a different legal basis), violation of 14 the ADA, and a new claim for violation of the Older Americans Act, 42 U.S.C. § 3001. 15 He also names Dr. Javors as a Defendant. 16 In dismissing Plaintiff’s first § 1983 claim, the Court found Plaintiff failed to allege 17 any facts to support the elements of either a procedural or substantive due process claim. 18 Although Plaintiff alleges additional facts in his FAC, he still fails to allege facts supporting 19 the elements of either a procedural or substantive due process claim. For instance, on his 20 procedural due process claim Plaintiff fails to allege what liberty or property interest is at 21 stake here. And to the extent he is attempting to allege a substantive due process claim, he 22 fails to allege any facts to support the element of conscience-shocking behavior on 23 Defendants’ part. Absent any factual allegations addressing the requisite elements, 24 Plaintiff has again failed to state a due process claim under § 1983.1 25 26 27 1 Absent a claim under § 1983, Plaintiff’s claim under § 1985 must also be dismissed. Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (quoting Caldeira v. 28 1 Next, Plaintiff alleges a claim of elder abuse. In his original Complaint, Plaintiff 2 relied on California law as the legal basis for this claim, but he now relies on the Elder 3 Abuse Prevention and Prosecution Act, 34 U.S.C. § 21701, et seq. This federal law, 4 however, “does not provide a private right of action.” Augusta v. Paini, No. 5:23-cv-667- 5 MMH-PRL, 2023 WL 8604281, at *2 (M.D. Fla. Nov. 20, 2023) (citations omitted). 6 Accordingly, Plaintiff cannot state a claim under this statute. 7 Plaintiff’s next claim alleges disability discrimination in violation of the ADA. As 8 stated in the Court’s previous order: 9 To state a claim of disability discrimination under Title II [of the ADA], the plaintiff must allege four elements: (1) the plaintiff is an individual with a 10 disability; (2) the plaintiff is otherwise qualified to participate in or receive 11 the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of 12 the public entity’s services, programs, or activities, or was otherwise 13 discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. 14 15 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Weinrich v. L.A. County 16 Metro. Transp. Auth., 114 F.3d 876, 978 (9th Cir. 1997)). In screening Plaintiff’s original 17 Complaint, the Court found Plaintiff failed to allege sufficient facts to support the first 18 element of his ADA claim. Plaintiff has cured that pleading deficiency in his FAC. (See 19 FAC at 6) (stating Plaintiff has “three-service-connected disabilities, two of which are 20 currently rated zero and one is rated ten percent” and that Plaintiff was found to be “totally 21 disabled in 1987 due to a compression injury to his spine and damage to his left wrist”). 22 However, he fails to allege any facts to support the other elements of this claim. 23 Accordingly, this claim, too, must be dismissed. 24 / / / 25 26 27 County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989)) (“’[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same 28 1 Plaintiff's final claim is based on the Older Americans Act, 42 U.S.C. § 3001, et seq. 2 || Like the Elder Abuse Prevention and Prosecution Act, this Act does not provide a private 3 of action. See Kregzde v. Sarebanha, No. CV 17-1220 JGB (FFM), 2017 WL 4 || 11635444, at *4 (C.D. Cal. Dec. 18, 2017) (stating “Act contains no provision allowing for 5 older American to sue a private individual for such wrongdoing.”) Thus, this claim 6 || must also be dismissed. 7 For these reasons, IT IS HEREBY ORDERED that Plaintiff's First Amended 8 ||Complaint is DISMISSED without prejudice for failure to state a claim pursuant to 28 9 |1U.S.C. § 1915(e)(2)(B)Gi). Because Plaintiff has not cured the pleading deficiencies 10 associated with his § 1983, § 1985, and elder abuse claims despite being given an 11 ||}opportunity to do so, those claims are dismissed with prejudice and without further leave 12 ||to amend. Plaintiff is granted leave to amend his ADA claim, however, to allege facts 13 supporting the remaining elements set out above. Should Plaintiff choose to file a Second 14 || Amended Complaint that cures the pleading deficiencies associated with his ADA claim, 15 shall do so on or before February 12, 2026. 16 IT IS SO ORDERED. 17 Dated: January 20, 2026 □ g p\ 18 hb YA. 19 Hon. Dana M. Sabraw United States District Judge 20 21 22 23 24 25 26 27 28