Essilfie v. Kracen, 2:18-cv-00828

Plaintiff Joseph Essilfie, proceeding pro se, sued Dr. Elizabeth Kracen alleging intentional infliction of emotional distress and seeking $10,000,000 based on her refusal/withdrawal of referral for testing/treatment.
Dr. Kracen was a treating physician employed at NeighborCare Health, a federally funded clinic whose employees are deemed federal employees for FTCA purposes.
Defendant removed the state-court action to federal court; the United States moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), arguing failure to exhaust administrative remedies under the FTCA.
Plaintiff did not present an administrative tort claim to HHS before filing suit and missed the initial deadline to respond to the motion; he later filed an untimely two-page response that did not dispute exhaustion requirements.
The Court evaluated jurisdictional facts beyond the pleadings, found no administrative exhaustion, treated Plaintiff’s late non-substantive response as conceding the motion under local rules, and granted dismissal for lack of jurisdiction.
Because Plaintiff is pro se, the Court granted one opportunity to amend within two weeks to allege exhaustion; if not cured, the case will be dismissed with prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has subject-matter jurisdiction under the FTCA because plaintiff failed to exhaust administrative remedies	Essilfie did not dispute federal-employee status and argued a procedural omission by the doctor (no "doctor-patient law form") excused exhaustion	United States: Dr. Kracen is a federal employee; FTCA requires presenting an administrative claim to HHS first; failure to exhaust is jurisdictional and requires dismissal	Court: Dismiss for lack of subject-matter jurisdiction because plaintiff did not present an administrative claim to HHS and did not dispute that requirement substantively
Whether dismissal should be with or without leave to amend	Essilfie requested to proceed (pro se) and later submitted a response; sought relief without showing exhaustion	United States asked dismissal without prejudice but did not argue futility of amendment	Court: Granted leave to amend once (two weeks) because plaintiff is pro se; warned that failure to cure or to timely amend will result in dismissal with prejudice

McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) (district court may consider evidence beyond pleadings to resolve jurisdictional facts)
Biotics Research Corp. v. Heckler, 710 F.2d 1375 (9th Cir. 1983) (same)
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) (party asserting jurisdiction bears burden of proving it)
Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 (9th Cir. 1989) (presumption against federal jurisdiction and burden on plaintiff)
Erickson v. Pardus, 551 U.S. 89 (2007) (pro se pleadings construed liberally)
Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (pro se litigants are bound by procedural rules)
McNeil v. United States, 508 U.S. 106 (1993) (FTCA bars suit until administrative remedies exhausted)
Brady v. United States, 211 F.3d 499 (9th Cir. 2000) (administrative-claim requirement under FTCA is jurisdictional and must be strictly observed)
Thornhill Publ’g Co. v. Gen’l Tel. & Elec. Corp., 594 F.2d 730 (9th Cir. 1979) (plaintiff bears burden to prove jurisdiction)
Flowers v. First Hawaiian Bank, 295 F.3d 966 (9th Cir. 2002) (dismissal without leave to amend appropriate only if deficiencies cannot be cured)