Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 25-cv-00882-DMS-BJW 9 M NORMAN HAMMERLORD, 10 Plaintiff, ORDER SCREENING PLAINTIFF’S 11 v. SECOND AMENDED COMPLAINT AND DENYING MOTION FOR SECRETARY DOUG COLLINS et al., 12 APPOINTMENT OF COUNSEL 13 Defendants. 14 15 16 17 On February 10, 2026, Plaintiff M Norman Hammerlord, proceeding pro se, filed a 18 Second Amended Complaint (“SAC”) against Defendants President Donald J. Trump, 19 Secretary of Veterans Affairs Doug Collins, Veterans Affairs San Diego Healthcare 20 System Director Frank Pearson, Dr. Ying Wu, and Dr. Jennifer M Javors. (Second Am. 21 Compl. (“SAC”), ECF No. 11). Plaintiff alleges claims arising from medical care he 22 receives through the Department of Veterans Affairs (“VA”). (Id. at 2). As Plaintiff is 23 proceeding in forma pauperis (“IFP”), the Court is required to screen the SAC pursuant to 24 28 U.S.C. § 1915(e)(2). On August 3, 2026, Plaintiff filed a Motion for Appointment of 25 Counsel. (Counsel Mot., ECF No. 13). For the following reasons, the Court sua sponte 26 dismisses Plaintiff’s SAC with limited leave to amend and denies the Motion for 27 Appointment of Counsel. 28 1 I. BACKGROUND 2 Plaintiff is an 81-year-old disabled veteran who receives medical care through the 3 VA San Diego Healthcare System. (SAC 6–7). Plaintiff alleges that on July 31, 2024, he 4 went to the VA La Jolla Emergency Room for shortness of breath and chest pain. (Id. at 5 8–9). Plaintiff alleges that he was diagnosed with dyspnea and told to schedule an 6 appointment with his primary care physician as soon as possible. (Id.). Plaintiff alleges 7 that he scheduled the soonest-available appointment for September 5, 2024, with his 8 physician, Defendant Dr. Wu. (Id. at 9). At the appointment, Dr. Wu allegedly 9 recommended CPAP therapy but Plaintiff informed her that he did not have sleep apnea 10 based on a recent test. (Id.).1 Plaintiff allegedly requested oxygen therapy but Dr. Wu 11 declined, citing recent pulmonary testing that Plaintiff contends was flawed. (Id. at 9–10). 12 “Plaintiff found this unacceptable, as he had previously been diagnosed with Emphysema, 13 severe heart problems and a murmur all of which seemed a more logical source of his 14 symptoms and issues.” (Id. at 9–10). On October 25, 2024, Plaintiff alleges that he sent 15 Dr. Wu and Director Pearson another written request for medical care, marking it as urgent, 16 but never heard back from them. (Id. at 11). On October 30, 2024, Dr. Wu’s manager 17 allegedly sent Plaintiff a response, which Plaintiff refers to as “the cover-up letter.” (Id. at 18 12). On November 6, 2024, Plaintiff allegedly sent a response to Dr. Wu and Director 19 Pearson, once again requesting medical care and marking the matter as urgent. (Id. at 13).2 20 On December 17, 2024, Plaintiff contacted the VA hotline and was assigned a case 21 number with an expected resolution date fourteen business days out. (Id. at 15). Plaintiff 22 alleges that after not hearing back, he again called the VA hotline and was able to obtain 23 an appointment for January 21, 2025. (Id.). At the appointment, Dr. Wu allegedly 24 25 26 1 On September 11, 2024, Plaintiff sent Dr. Wu a written memorandum documenting the video appointment, which he quotes in the SAC. (Id. at 9). A copy was also sent to Defendant Director Pearson 27 through the VA Patient’s Advocate Office in La Jolla. (Id.). 2 Plaintiff alleges that he attempted hand-delivery but was turned away, so instead sent the response by 28 1 reaffirmed her decision not to go forward with oxygen therapy. (Id. at 16). On January 2 30, 2025, Plaintiff alleges he again contacted the VA hotline and was assigned a new case 3 number, but never heard back. (Id.). That same day, Plaintiff alleges he sent a complaint 4 and demand for damages to former VA Secretary Denis R. McDonough and Director 5 Pearson. (Id.). On February 26, 2025, the VA Office of General Counsel sent a reply 6 inviting Plaintiff “to submit his claim to the VA Torts Claim Group using Form SF-95 7 under the provisions of the Federal Torts Claims Act.” (Id.). On March 10, 2025, Plaintiff 8 alleges that he submitted a criminal complaint against Dr. Wu and Director Pearson “with 9 the Commander of the San Diego VA Police in La Jolla.” (Id. at 17). On March 12, 2025, 10 Plaintiff allegedly filed a claim for medical malpractice using Form SF-95 as instructed by 11 the VA Office of General Counsel. (Id.). That same day, Plaintiff filed a consumer 12 complaint with the Medical Board of California against Dr. Wu. (Id. at 19). Plaintiff 13 alleges that when he asked for Dr. Wu’s license number to fill in the complaint form, 14 Defendants refused to give it to him. (Id. at 19). On March 27, 2025, Plaintiff alleges that 15 he received a response to the complaint characterizing Dr. Wu as a physician licensed in 16 Florida and indicating the Board did not have jurisdiction over a physician licensed in 17 another state. (Id.). On April 7, 2025, the VA Office of General Counsel allegedly sent an 18 acknowledgement of receipt of Plaintiff’s claim and stated they were allowed six months 19 to consider the claim. (Id. at 20). 20 On April 14, 2025, Plaintiff filed the present action with a Motion to Proceed IFP. 21 (ECF Nos. 1–2). On April 25, 2025, Plaintiff met with a newly assigned physician, 22 Defendant Dr. Javors. (SAC 20). Plaintiff alleges that it was clear Dr. Javors had consulted 23 with Dr. Wu on the issue and developed a predisposition towards the issue of oxygen 24 therapy. (Id.). On April 29, 2025, Plaintiff was sent the results of his recent CT Chest 25 Aortic Dissection. (Id. at 20–21). On May 21, 2025, Plaintiff allegedly sent a letter via 26 certified mail to Dr. Javors documenting their initial visit, with a copy also sent to Director 27 Pearson. (Id. at 21). The letter allegedly requested medical records, oxygen therapy, and 28 a sooner appointment, but went unanswered. (Id.). On May 28, 2025, Plaintiff filed a 1 Declaration of Urgent Matter and Request to Expedite Ruling in this action. (ECF No. 3). 2 On June 2, 2025, Plaintiff alleges that he met with Dr. Javors again and that his requests 3 for documents, referrals, and oxygen therapy were denied. (SAC 21). On June 17, 2025, 4 Plaintiff requested a referral to physical therapy or a back brace as a follow-up to Dr. Javors 5 noting he had a curvature of the spine which was affecting Plaintiff’s breathing. (Id. at 21– 6 22). Plaintiff also requested a referral to cardiology, oxygen therapy, and the head and 7 neck clinic. (Id.). On June 18, 2025, Plaintiff filed a Motion for Recusal. (ECF No. 4). 8 On July 2, 2025, Plaintiff had another consultation with Dr. Javors in which she stated that 9 she had responded to his written request although Plaintiff alleges he had not received a 10 response. (SAC 22). On July 7, 2025, the Court granted Plaintiff’s Motion to Proceed 11 IFP, denied the Motion for Recusal, and dismissed the Complaint without prejudice for 12 failing to state a claim upon which relief may be granted. (ECF No. 5). On July 14, 2025, 13 Plaintiff sent Dr. Javors a request for documents via certified mail with a requested 14 response date within ten days. (SAC 22). 15 On August 6, 2025, Plaintiff filed a First Amended Complaint. (ECF No. 7). On 16 January 20, 2026, the Court dismissed the First Amended Complaint. (ECF No. 10). The 17 Court dismissed Plaintiff’s 42 U.S.C. § 1983, 42 U.S.C. § 1985, and elder abuse claims 18 without leave to amend as Plaintiff had not cured the previously identified deficiencies. 19 (Id. at 5). However, the Court gave Plaintiff leave to amend his Americans with Disabilities 20 Act (“ADA”) claims as he had cured the first element but still failed to plausibly allege the 21 remaining elements. (Id. at 4–5). On February 10, 2026, Plaintiff filed the Second 22 Amended Complaint currently before the Court. (SAC 1). On August 3, 2026, Plaintiff 23 filed a Motion for Appointment of Counsel. (ECF No. 13). In the SAC, Plaintiff alleges 24 an ADA claim, as well as a new claim under the Federal Torts Claims Act (“FTCA”) for 25 the same underlying behavior. (SAC 22–26). Within that claim, Plaintiff also sues Dr. 26 Wu, Dr. Javors, and Director Pearson in their individual capacities for money damages 27 pursuant to Bivens. (SAC 25–26); Bivens v. Six Unknown Named Agents of Fed. Bureau 28 of Narcotics, 403 U.S. 388 (1971). Plaintiff additionally seeks immediate assignment to 1 community care or $7,500,000 in a medical trust until his death, a second opinion, an 2 answer to Plaintiff’s concerns, $2,000 for his pain and suffering, the relevant Parties’ 3 California State Medical Board license numbers, $50,000,000 in trust for other alleged 4 victims, and fees and costs. (SAC 26–27). 5 II. LEGAL STANDARD 6 Under 28 U.S.C. § 1915(e)(2), the Court must screen an IFP complaint and dismiss 7 the case if, at any time, it determines that the action is frivolous or malicious, fails to state 8 a claim on which relief may be granted, or seeks monetary relief against a defendant who 9 is immune from such relief. See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per 10 curiam) (confirming § 1915(e)(2)(B) applies to non-prisoners as well). A complaint “is 11 frivolous where it lacks an arguable basis either in law or in fact” and malicious where “it 12 was filed with the intention or desire to harm another.” Neitzke v. Williams, 490 U.S. 319, 13 325 (1989); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation modified). 14 “The standard for determining whether a plaintiff has failed to state a claim upon which 15 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 16 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 17 1112 (9th Cir. 2012). Accordingly, “a complaint must contain sufficient factual matter, 18 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 20 In reviewing the plausibility of a complaint on a motion to dismiss, a court must “accept 21 factual allegations in the complaint as true and construe the pleadings in the light most 22 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 23 1025, 1031 (9th Cir. 2008). However, “[t]hreadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 25 Finally, dismissal is warranted when the plaintiff seeks monetary relief against an immune 26 defendant, as long as the court “has sufficient information to make a determination on 27 immunity.” Chavez v. Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016). 28 1 III. DISCUSSION 2 The Court now examines the SAC to determine whether it is frivolous or malicious, 3 fails to state a claim on which relief may be granted, or seeks monetary relief against a 4 defendant with immunity from such relief. 5 As a preliminary matter, the Court’s January 20, 2026 Order granted leave only as 6 to the ADA claim. (ECF No. 10 at 5). Plaintiff has exceeded that grant by adding President 7 Donald J. Trump as a Defendant, reasserting reliance on the Older Americans Act, and 8 asserting a new cause of action under the FTCA. (SAC 1, 5–7, 25–26). However, there 9 are no new claims alleged against the added Defendant and no new causes of action are 10 asserted under the Older Americans Act. Furthermore, the Court notes that Plaintiff’s 11 FTCA claim was not actionable until after the filing of the First Amended Complaint on 12 August 6, 2025. (See SAC 18 (stating that the claim was filed on March 12, 2025); ECF 13 No. 7); 28 U.S.C. § 2675 (requiring a claim to be denied by an agency before suit may be 14 filed and allowing a claim pending for longer than six months to be considered a denial). 15 Therefore, the Court screens the SAC in its entirety. 16 A. ADA Claim 17 Plaintiff’s first cause of action alleges disability discrimination in violation of the 18 ADA. “To prove that a public program or service violated Title II of the ADA, a plaintiff 19 must show: (1) he is a qualified individual with a disability; (2) he was either excluded 20 from participation in or denied the benefits of a public entity’s services, programs, or 21 activities, or was otherwise discriminated against by the public entity; and (3) such 22 exclusion, denial of benefits, or discrimination was by reason of his disability.” Duvall v. 23 County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (citation modified). Although 24 Plaintiff has plausibly alleged that he is a qualified individual with a disability, he cannot 25 meet the other requirements. (ECF No. 10 at 4). This is because Title II of the ADA only 26 applies to a “public entity” which is defined as “any State or local government,” “any 27 department, agency, special purpose district, or other instrumentality of a State or States or 28 local government,” or a commuter authority. 42 U.S.C. § 12131(1). The VA is an agency 1 of the federal government and thus not a public entity within the meaning of Title II. Cf. 2 Drevaleva v. Dep’t of Veterans Affs., 835 F. App’x 221, 223 (9th Cir. 2020) (“[T]he federal 3 government is excluded from the coverage of the ADA.”). Accordingly, Plaintiff’s ADA 4 claim is dismissed without leave to amend as it is absolutely clear the deficiency could not 5 be cured by amendment. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 6 B. FTCA and Bivens Claims 7 Plaintiff’s second cause of action seeks monetary compensation under the FTCA for 8 injuries allegedly caused by VA employees acting within the scope of their employment, 9 and further seeks to hold Dr. Wu, Dr. Javors, and Director Pearson personally liable under 10 Bivens. (SAC 25–26); 28 U.S.C. §§ 1346, 2671–2680; 403 U.S. 388. 11 “The United States is the only proper defendant in an FTCA action.” Lance v. United 12 States, 70 F.3d 1093, 1095 (9th Cir. 1995); see § 2679(d)(1) (providing a process for the 13 United States to be substituted in as a party if the Attorney General certifies that the 14 defendant employee was acting within the scope of their employment). As such, Plaintiff’s 15 FTCA claim is dismissed. Additionally, Plaintiff’s interactions with Dr. Javors and any 16 other post-presentment conduct may not be the basis for his FTCA claim. See § 2675. 17 Furthermore, FTCA claims may only be brought against the United States “if a private 18 person[] would be liable to the claimant in accordance with the law of the place where the 19 act or omission occurred.” § 1346(b)(1). Here, Plaintiff’s claim was described as “medical 20 malpractice, withholding benefits and the attempted cover-up thereto which caused 21 pain/discomfort, mental anguish, serious bodily injury and lack of faith in the system.” 22 (SAC 18). Medical negligence is a cognizable claim in California and may thus be the 23 basis for an FTCA claim. Flores ex rel. Clark v. United States, 780 F. App’x 420, 421 (9th 24 Cir. 2019) (discussing an FTCA medical negligence claim and listing the required 25 elements). However, the withholding of veterans’ benefits is not a state-law tort. See 38 26 U.S.C. § 511(a) (stripping courts of jurisdiction over the provision of veterans’ benefits); 27 see also Tunac v. United States, 897 F.3d 1197, 1203 (9th Cir. 2018) (confirming that 28 despite § 511’s “expansive scope[,] . . . the FTCA specifically confers jurisdiction on 1 federal district courts to hear claims involving medical negligence.” (citation modified)). 2 Finally, it is unclear what tort Plaintiff might be alleging related to an “attempted cover- 3 up.” (SAC 18). In any amended complaint, Plaintiff is not limited by the legal theories 4 specified in his administrative claim because the claim only needed to contain “a general 5 description of the time, place, cause and general nature of the injury and the amount of 6 compensation demanded.” Goodman v. United States, 298 F.3d 1048, 1055–56 (9th Cir. 7 2002) (“We do not require the claimant to provide the agency with a preview of his or her 8 lawsuit by reciting every possible theory of recovery or every factual detail that might be 9 relevant.” (citation modified)). 10 To assess Plaintiff’s Bivens claim, the Court must first look to whether “the case is 11 different in a meaningful way from previous Bivens cases decided by [the Supreme] 12 Court.” Ziglar v. Abbasi, 582 U.S. 120, 139–40 (2017) (listing factors to consider). If it 13 is, the Court must look to whether “there are special factors counselling hesitation in the 14 absence of affirmative action by Congress.” Id. at 136. Here, Plaintiff asserts that he is 15 suing the three Defendants “for their on-the-job conduct that violated the Constitution.” 16 (SAC 25). However, the Supreme Court has only ever extended Bivens to Fourth 17 Amendment violations by federal officers, Fifth Amendment employment discrimination, 18 and Eighth Amendment protections for prisoners. Schwartz v. Miller, 153 F.4th 918, 926 19 (9th Cir. 2025); see Bivens, 403 U.S. 388; Davis v. Passman, 442 U.S. 228 (1979); Carlson 20 v. Green, 446 U.S. 14 (1980). Plaintiff’s constitutional claims based on VA healthcare are 21 therefore different in a meaningful way from previous Bivens cases. Where a claim arises 22 in a new context, courts “may not fashion a Bivens remedy if Congress already has 23 provided, or has authorized the Executive to provide, an alternative remedial structure.” 24 Egbert v. Boule, 596 U.S. 482, 493 (2022) (citation modified). Here, Congress has 25 explicitly made the FTCA the exclusive remedy for claims arising from the provision of 26 VA healthcare. 38 U.S.C. § 7316(a) (citing § 1346(b)). Therefore, the Court need not 27 “weigh the costs and benefits of allowing a damages action to proceed” and Plaintiff’s 28 claim fails as a matter of law. Ziglar, 582 U.S. at 136. Accordingly, Plaintiff’s Bivens 1 claim is dismissed. 2 A court “should not dismiss a pro se complaint without leave to amend unless it is 3 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 4 Akhtar, 698 F.3d at 1212 (citation modified); Fed. R. Civ. P. 15(a) (courts should “freely 5 give leave [to amend] when justice so requires”). Although Plaintiff has twice had the 6 opportunity to amend his complaint, his FTCA claim was previously not actionable and 7 thus raised for the first time in his SAC. See § 2675. Accordingly, the Court grants Plaintiff 8 leave to amend only as to his FTCA claim. 9 IV. MOTION FOR APPOINTMENT OF COUNSEL 10 Plaintiff has filed a motion seeking the appointment of counsel “in the interest of 11 justice and to communicate better with the Court.” (Counsel Mot. 2). There is no 12 constitutional right to appointment of counsel in a civil case, unless an indigent litigant’s 13 physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 14 25 (1981). “However, a court may under ‘exceptional circumstances’ appoint counsel for 15 indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 16 965, 970 (9th Cir. 2009). “When determining whether exceptional circumstances exist, a 17 court must consider the likelihood of success on the merits as well as the ability of the 18 petitioner to articulate his claims pro se in light of the complexity of the legal issues 19 involved.” Id. (citation modified). Here, neither consideration supports appointment at 20 this time. Plaintiff’s SAC has been dismissed with limited leave to amend and thus a 21 likelihood of success on the merits cannot presently be assessed. Furthermore, Plaintiff’s 22 SAC does not evidence an inability to articulate claims on the legal issues involved. For 23 those reasons, Plaintiff’s Motion for Appointment of Counsel is denied without prejudice. 24 V. CONCLUSION AND ORDER 25 For the foregoing reasons, Plaintiff’s Second Amended Complaint does not survive 26 § 1915(e)(2) screening. The SAC is DISMISSED and Plaintiff’s Motion for Appointment 27 of Counsel is DENIED without prejudice. Plaintiff may file a Third Amended Complaint 28 within twenty-one days of this Order asserting an FTCA claim against the United States 1 || but not otherwise adding any new claims or parties. If Plaintiff does not file an amended 2 complaint within that time, the Clerk of Court is instructed to close this case. 3 IT IS SO ORDERED. 4 || Dated: August 24, 2026 2» J ) \ 5 Yn - 6 Hon. Dana M. Sabraw 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28