Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 1 of 9
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
`
`NEW TECHNOLOGY ADVANTAGE,
`KEVIN DONAHOE-CEO,
`
`Plaintiff,
`
`v.
`
`STEVE PETRUZELLI, WILLAMETTE
`DENTAL GROUP, PC, ET AL.,
`
`Defendant(s).
`
`Case No. C07-5240RBL
`
`ORDER GRANTING
`MOTIONS FOR
`SUMMARY JUDGMENT
`AND TO DISMISS
`
` I. INTRODUCTION
`
`Pending before the court are the Motion for Summary Judgment by Defendants Steve Petruzelli
`
`and Willamette Dental Group PC (Willamette), Dkt. #12, and Motions to Dismiss by Defendant American
`
`Medical Association (AMA), Dkt. #15, Defendant “Federal Government-George Bush Jr.” (Federal
`
`Government), Dkt. #16, and Defendant American Dental Association (ADA), Dkt. #18. The court has
`
`considered the pleadings filed in support of and in opposition to the motions and the file herein.
`
`Plaintiff apparently suffered an injury while receiving a routine dental filling at Willamette Dental in
`
`April 2005. After efforts to resolve his complaints directly with Willamette were unsuccessful, Plaintiff
`
`brought an action in Thurston County Superior Court, Case No. 07-2-00151-1, on January 24, 2007
`
`against Willamette and a number of other defendants. On June 1, 2007, the Thurston County judge granted
`
`Willamette’s Motion for Summary Judgment and dismissed all claims against Willamette with prejudice.
`
`On March 26, 2007, Plaintiff filed another virtually identical lawsuit in Thurston County Superior
`
`ORDER
`Page - 1
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 2 of 9
`
`Court, Case No. 07-2-00605-0, again suing Willamette for medical malpractice, but this time making a
`
`number of derivative claims against several additional defendants, including the Federal Government, the
`
`AMA, and the ADA. Essentially, Plaintiff alleges that but for the Federal Government's failure to provide
`
`effective leadership, he would not have suffered harm through Willamette's negligence. He also claims that
`
`the ADA and the AMA committed copyright “violations” related to copyrights in “Ethics” and “standard
`
`of patient care” that he purports to hold.
`
`After the Federal Government removed the case to this court pursuant to 28 U.S.C. §§ 1442(a) and
`
`1446, Willamette moved for Summary Judgment, Dkt. #12, and the Federal Government, the AMA, and
`
`the ADA moved to Dismiss, Dkt. #s 15, 16, and 18.
`
`Plaintiff Mr. Donahoe has appeared pro se. Courts in this Circuit have long held that, particularly
`
`where a pro se petitioner is facing dismissal, the court will construe his or her pleadings liberally. See
`
`Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990); Bretz v. Kelman, 773 F.2d 1026,
`
`1027 n. 1 (9th Cir. 1985) (“[W]e have an obligation where the petitioner is pro se... to construe the
`
`pleadings liberally and to afford the petitioner the benefit of any doubt.”) The court is aware of and has
`
`applied this rule of liberality.
`
`II. DISCUSSION
`
`WILLAMETTE
`
`Willamette moved for summary judgment, arguing that Plaintiff’s claims must be dismissed on a
`
`number of bases, including that the doctrine of issue preclusion bar’s Mr. Donahoe’s claims against
`
`Willamette. Willamette argues that Mr. Donahue cannot relitigate in this case his claims against Willamette
`
`because those issues were previously, validly, and finally determined when the Thurston County Superior
`
`Court dismissed with prejudice the malpractice claims that Mr. Donahoe brought against Willamette in his
`
`first lawsuit.
`
`The issue preclusion doctrine (sometimes referred to as collateral estoppel) is expressed in the
`
`Restatement (Second) of Judgments § 27 as follows:
`
`When an issue of fact or law is actually litigated and determined by a valid and final
`judgment, and the determination is essential to the judgment, the determination is conclusive
`in a subsequent action between the parties, whether on the same or a different claim.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ORDER
`Page - 2
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 3 of 9
`
`This federal court must give to the Thurston County Superior Court judgment the same preclusive
`
`effect as Washington law would give to that judgment. See Migra v. Warren City School Dist. Bd. of
`
`Educ., 465 U.S. 75, 80-81 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically
`
`required all federal courts to give preclusive effect to state-court judgments whenever the courts of the
`
`State from which the judgments emerged would do so.…”).
`
`Before this court can grant Willamette’s motion to dismiss on this basis, Willamette must show four
`
`elements:
`
`(1) the issue decided in the prior adjudication is identical with the one presented in the
`second action;
`(2) the prior adjudication must have ended in a final judgment on the merits;
`(3) the party against whom the plea is asserted was a party or in privity with the party to the
`prior adjudication; and
`(4) application of the doctrine does not work an injustice.
`
`See Thompson v. State, Dept. of Licensing, 138 Wash. 2d 783, 790, 982 P.2d 601, 605 (1999).
`
`Willamette has shown each element. First, Plaintiff’s claim against Willamette is virtually identical
`
`to his claim in the first suit. Second, the first suit was dismissed with prejudice upon Willamette’s Motion
`
`for Summary Judgment and was thus adjudicated on the merits. Cf. Restatement (Second) of Judgments §
`
`20 cmt. d. (1982) (In discussing the closely related doctrine of claim preclusion, equating a dismissal “with
`
`prejudice” with an adjudication “on the merits.”). Third, the same Plaintiff acting in the same capacity
`
`brought both suits. Fourth, applying the doctrine of issue preclusion will not work an injustice because
`
`Plaintiff has already had a full and fair opportunity to pursue his claims against Willamette in Thurston
`
`County. Applying the doctrine of issue preclusion will do no more than acknowledge that Plaintiff has
`
`already had his day in court and that he may not continue to compel Willamette to needlessly defend
`
`against claims that have already been finally adjudicated.
`
`Accordingly, Willamette’s Motion for Summary Judgment is GRANTED and all claims against
`
`Defendants Steve Petruzelli and Willamette Dental Group PC are hereby DISMISSED.
`
`FEDERAL GOVERNMENT
`
`The Federal Government moved to dismiss, arguing that Plaintiff’s claims either are barred by
`
`sovereign immunity or are barred because Plaintiff failed to comply with the jurisdictional requirements of
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ORDER
`Page - 3
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 4 of 9
`
`the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2670, et al.
`
`Beginning with the claims that are barred by sovereign immunity, it is well established that a party
`
`may bring an action against the United States only to the extent that the government waives its sovereign
`
`immunity. See United States v. Orleans, 425 U.S. 807, 814 (1976). The FTCA waives the government’s
`
`sovereign immunity for certain tort claims. Brady v. U.S., 211 F.3d 499, 502 (9th Cir. 2000). However, 28
`
`U.S.C. § 2680(a) provides that sovereign immunity is not waived for
`
`any claim based upon an act or omission of an employee of the Government, exercising due
`care, in the execution of a statute or regulation, whether or not such statute or regulation be
`valid, or based upon the exercise or performance or the failure to perform a discretionary
`function or duty on the part of a federal agency or an employee of the Government, whether
`or not the discretion is abused.
`
`Plaintiff alleges that “George Bush (President) failed to ‘implement a JOINT Executive Order in a
`
`cooperative effort’ requiring all healthcare workers in the Washington State and the United States to
`
`follow a single, consistent, large group worldwide methodology for ‘Patient Safety’ and ‘Ethics’ to foster
`
`and promote minimizing needless injury and death of human beings.” Complaint, pp. 16-17. More
`
`specifically, Plaintiff complains that President Bush has not issued an executive order “to implement
`
`[Plaintiff’s] BRAND of Ethics and Patient Safety all across Washington and the United States.…”
`
`Complaint, p.17. To the extent that Plaintiff complains that the Federal Government failed to follow the
`
`law or negligently executed the law, then the government is immune under the first prong of Section
`
`2680(a), which bars claims based on an act or omission of a government employee in the execution of a
`
`statute or regulation. Similarly, regarding Plaintiff’s complaint that the President failed to issue an
`
`executive order, the government is immune under the “discretionary function” prong of Section 2680(a).
`
`Plaintiff’s Complaint also alleges claims in tort against the Federal Government for which the
`
`government has waived sovereign immunity. For example, Plaintiff alleges that his “healthcare disaster”
`
`could have been avoided if Federal Defendant and others had exhibited “better government leadership.”
`
`Complaint, p. 2. As such, plaintiff’s remedy against Federal Defendant is the FTCA, which makes the
`
`United States, and not individual Federal employees, the properly named defendant. Individual Federal
`
`employees, when acting within the scope of their employment, are immune from suit. See 28 U.S.C. §
`
`Plaintiff cannot sustain his complaint against the Federal Government because he failed to comply
`
`2679.
`
`ORDER
`Page - 4
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 5 of 9
`
`with the requirements set by the FTCA. As a jurisdictional requirement of the FTCA, a claimant must first
`
`exhaust his administrative remedies before pursuing an action in court. See 28 U.S.C. § 2675(a). “Because
`
`the requirement is jurisdictional, it ‘must be strictly adhered to. This is particularly so since the FTCA
`
`waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States.’”
`
`Brady, 211 F.3d at 502 (quoting Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992)).
`
`There is no evidence that Plaintiff presented his claim to any federal agency. Moreover, Plaintiff has
`
`not plead compliance with the FTCA in his complaint. Generally speaking, in such circumstances, “before a
`
`district court may dismiss a pro se complaint... the court must provide the pro se litigant with notice of the
`
`deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.”
`
`McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds, WMX
`
`Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). However, “[a] district court does
`
`not err in denying leave to amend where the amendment would be futile, or where the amended complaint
`
`would be subject to dismissal.” Saul v. U.S., 928 F.2d 829, 843 (9th Cir. 1991) (internal citations omitted).
`
`In this case, allowing Plaintiff to amend his complaint would be futile because no amendment could
`
`overcome the Federal Government’s immunity provided for in Section 2680(a). As to those claims not
`
`covered by Section 2680(a), amendment would be futile because those claims are secondary to or
`
`derivative of the dental malpractice claims against Willamette. As noted above, Plaintiff alleges that his
`
`“healthcare disaster” could have been avoided if Federal Defendant and others had exhibited “better
`
`government leadership.” Complaint, p. 2. Plaintiff’s theory seems to be that a failure of leadership by the
`
`government somehow caused Willamette to negligently treat Plaintiff, causing him harm.
`
`Assuming for the sake of argument that the government has a duty to provide non-negligent
`
`leadership, and further assuming that any such duty is owed to individual citizens (as opposed to the public
`
`at large), it follows from Plaintiff's theory that if Willamette did not violate its duty of care towards
`
`Plaintiff, then there was no need for the Federal Government to have exhibited better leadership. Put
`
`another way, if Willamette's negligence did not harm Plaintiff, then there is nothing that better government
`
`leadership could have avoided. Without harm caused by Willamette’s negligence, Plaintiff has absolutely no
`
`basis on which to allege that the Federal Government violated any duty towards him.
`
`As ordered above, Plaintiff’s dental malpractice claims in this suit have been dismissed because in
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ORDER
`Page - 5
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 6 of 9
`
`his first suit, the Thurston County Superior Court considered Plaintiff’s virtually identical claims against
`
`Willamette and dismissed those claims, with prejudice, on the merits. It therefore cannot be said that as a
`
`matter of law, Willamette violated its duty of care towards Plaintiff. Accordingly, Plaintiff has no basis for
`
`a tort claim against the Federal Government, and Plaintiff’s claims against the Federal Government and
`
`President Bush must be DISMISSED with prejudice.
`
`AMERICAN DENTAL ASSOCIATION
`
`The American Dental Association (ADA) moved to dismiss, arguing that Plaintiff’s complaint
`
`completely fails to articulate any cognizable claim against the ADA. Indeed, Plaintiff makes only one
`
`allegation1 against the ADA in his sprawling complaint, alleging that “[t]he top executive leaders of the
`
`[ADA] and American Medical Association failed to respect my international copyrights on both (a)
`
`Standard Level of Patient Care and (B) Ethics and are guilty of copyright violations.” Complaint, p. 17.
`
`Although Plaintiff makes only this one specific claim against the ADA, he fleshes out his theory of
`
`alleged copyright violations throughout his Complaint. For example, under the bullet point, “Clear
`
`violation of ‘the internationally copyrighted’ standard level of patient care,” Plaintiff explains that “the
`
`‘current generation of patient standard of care’ is defined by New Technology Advantage Corporation.”
`
`Complaint, p.9. (Plaintiff is the CEO of New Technology Advantage and that corporation was an original
`
`Plaintiff in this suit.) Moving on to his alleged copyright on “Ethics,” he states that “[g]overnment offices
`
`and healthcare schools don’t even have Ethics defined without violating international copyrights on
`
`intellectual property.” Complaint, p.15. Finally, Plaintiff states that he seeks the court’s help to “spread a
`
`consistent BRAND of (A) Ethics, and (B) Standard Level of Patient care all over the world.…”
`
`Complaint, p.24 (emphasis in original). However, what Plaintiff means by this statement is that he wants
`
`the court’s help to spread his “worldwide standards of Ethics and Patient Safety” that he has purportedly
`
`1Earlier in his complaint, Plaintiff also asserts that “professional organizations (like ADA and AMA)
`have an ETHICAL DUTY to adequately license and monitor dentists, doctors, and other types of healthcare
`workers worldwide and in this state.” Complaint, p. 8 (emphasis in original). Plaintiff goes on to assert that
`this “ethical duty” includes “ensuring [bad dentists] are tracked with Geographical Positioning System (GPS)
`chips and their identities confirmed with fingerprints.” Id. Even if the court interprets this language so liberally
`as to construct an allegation that the ADA and the AMA’s conduct fell below a standard of care that those
`organizations legally owe to Plaintiff, any such claims would fail and amendment would be futile because such
`claims would be secondary to or derivative of the dental malpractice claims against Willamette that have been
`finally adjudicated on the merits in Willamette’s favor. See discussion above.
`
`ORDER
`Page - 6
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 7 of 9
`
`copyrighted. See Complaint, p.2.
`
`Moreover, the “BRAND” that Plaintiff wants the court to help him spread is a brand that he has
`
`developed and seeks to profit from. For example, Plaintiff complains that President Bush has not issued an
`
`executive order “ to implement my BRAND of Ethics and Patient Safety.…” Complaint, p.17 (emphasis
`
`added). Plaintiff also asserts that “the only prudent and wise choice for any top level executive dental
`
`leader to subscribe monthly to my ‘Mark’ of success in Patient Safety methodologies and Ethics.”
`
`Complaint, p.10. (emphasis added).
`
`Considering the Complaint as a whole, the inescapable conclusion is that when Plaintiff alleges
`
`copyright “violations,” he is really complaining that the defendants, including the ADA, have failed to copy
`
`or adopt his own approach to ethics and patient care standards. In other words, Plaintiff seeks to use
`
`copyright law to force the ADA and other defendants to copy his approach to and concept of ethics and
`
`patient care standards. Such a cause of action, however, is outside the scope of copyright law—for that
`
`matter, it is outside the scope of any body of law.
`
`ADA’s Motion to Dismiss, Dkt. #18, ably explains the insurmountable deficiencies in Plaintiff’s
`
`theory of his copyright cause of action. For example, the ADA explains that short words such as “ethics”
`
`and short common phrases such as “standard level of patient care” are not copyrightable subject matter.
`
`See 37 C.F.R. 202.1(a). Furthermore, Plaintiff also may not claim a copyright in any idea, concept,
`
`principle, plan, system, or method. See 17 U.S.C. § 102(b); 37 C.F.R. 202.1(b). “It is an axiom of
`
`copyright law that the protection granted to a copyrighted work extends only to the particular expression
`
`of the idea and never to the idea itself.” Sid & Marty Krofft Television Productions, Inc. v. McDonald's
`
`Corp., 562 F.2d 1157, 1163 (9th Cir. 1977) (citing Mazer v. Stein, 347 U.S. 201, 217-18 (1954); Baker v.
`
`Selden, 101 U.S. 99, 102-03 (1879)). Finally, even if Plaintiff does possess a copyright in some work that
`
`incorporates the word “ethics” or the phrase “standard level of patient care,” he cannot thereby object to
`
`the manner in which others use those same terms.
`
`It would be futile to allow Plaintiff to amend his complaint because this is not a case of mere
`
`“inartful pleading.” Rather, there is simply no cause of action he could adopt to force the ADA to adopt his
`
`interpretations of ethics and patient care standards. The court has treated Plaintiff’s pro se complaint with
`
`the requisite liberality, and to do any more would be to abandon the court’s role as an impartial arbiter and
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ORDER
`Page - 7
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 8 of 9
`
`become an advocate for Plaintiff.
`
`For the reasons outlined above, Defendant ADA’s Motion to Dismiss is GRANTED and Plaintiff’s
`
`claims against the ADA are DISMISSED with prejudice.
`
`AMERICAN MEDICAL ASSOCIATION
`
`The American Medical Association (AMA) moved to dismiss, arguing that Plaintiff has not met his
`
`burden of demonstrating that the court may exercise personal jurisdiction over it. And Plaintiff has not, in
`
`fact, met this burden. The AMA also argues, correctly, that Plaintiff has failed to state a claim for which
`
`relief may be granted. Ordinarily, such arguments would prevail and the claims against the AMA would be
`
`dismissed. However, in these circumstances, a court should grant a pro se plaintiff leave to amend the
`
`complaint to remedy the problems, unless such amendment would be futile. But the AMA does not argue
`
`that it would be futile to allow Plaintiff to amend his complaint.
`
`However, in this case, amendment would be futile because the claims asserted against the AMA are
`
`exactly the same as the claims asserted against the ADA, discussed above. Therefore, if it would be futile
`
`to allow Plaintiff to amend his complaint to fix his claims against the ADA, it would be equally futile to
`
`allow him to amend his complaint to fix his claims against the AMA. Accordingly, the claims against the
`
`AMA are DISMISSED with prejudice.
`
`III. CONCLUSION
`
`For the reasons stated above, Defendants Steve Petruzelli and Willamette Dental Group PC’s
`
`Motion for Summary Judgment, Dkt. #12, is GRANTED and all claims against Steve Petruzelli and
`
`Willamette Dental Group PC are hereby DISMISSED. Defendant American Medical Association’s Motion
`
`to Dismiss, Dkt. #15, is GRANTED and all claims against the American Medical Association are hereby
`
`DISMISSED with prejudice. The Motion to Dismiss of “Federal Government-George Bush Jr. [sic]”, Dkt.
`
`#16, is GRANTED and all claims against that defendant are hereby DISMISSED with prejudice.
`
`Defendant American Dental Association’s Motion to Dismiss, Dkt. #18, is GRANTED and all claims
`
`against the American Dental Association are hereby DISMISSED with prejudice. All pending motions filed
`
`ORDER
`Page - 8
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 9 of 9
`
`by Plaintiff are DENIED as moot.
`
`It is so ORDERED.
`
`The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any
`
`party appearing pro se at such party’s last known address.
`
`DATED this 6th day of July, 2007.
`
`AR
`
`ONALD B. LEIGHTON
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ORDER
`Page - 9