Carter et al v. Alabama CVS Pharmacy, L.L.C. #04826 et al (CONSENT)
MEMORANDUM OPINION AND ORDER: it is ORDERED and ADJUDGED that the United States' 4 motion to dismiss be and is hereby GRANTED, and that the plfs' federal claims against the health care provider dfts be and are hereby DISMISSED without prejudice; further ORDERED and ADJUDGED that the plfs' state law claims be and are hereby DISMISSED without prejudice. Signed by Honorable Judge Charles S. Coody on 5/11/2017. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
AISHA CARTER, individually and
as mother and next friend of I.F., and
ALABAMA CVS PHARMACY,
LLC #04826, et al.,
) CIVIL ACT. NO. 1:17cv187-CSC
MEMORANDUM OPINION and ORDER
On March 29, 2017, the United States filed a Notice of Substitution and Notice of
Removal of this case from the Circuit Court of Dale County, Alabama. The plaintiffs filed this
medical malpractice lawsuit in state court after plaintiff I.F. was incorrectly prescribed
Hydralazine, a medication used to treat high blood pressure, instead of Hydroxyzine, an
antihistamine. The plaintiffs sue Southeast Alabama Rural Health Associates, Newton Family
Health Associates, Nasser Samuy, D.O., Billy Harmon, P.A., CVS Pharmacy, LLC, # 4826,
Alabama CVS Health Corporation, and CVS Pharmacy, Inc. Pursuant to 28 U.S.C. §
2679(d)(2) and 42 U.S.C. § 233(c) and (g), the United States filed a notice to be substituted for
defendants Samuy, Harmon, Southeast Alabama Rural Health Associates, and Newton Family
Health Associates as the defendant for the plaintiffs’ state law tort claims. The United States
has certified that these defendants “by operation of the Federally Supported Health Centers
Assistance Act of 1992 (FSHCAA), 42 U.S.C. § 233(g)-(n), . . . are deemed to be employees
of the United States Public Health Service (PHS).” (Doc. # 1). The plaintiffs do not oppose the
notice of substitution and have alleged no facts demonstrating that these defendants should not
be deemed federal employees for the purpose of this litigation. Consequently, the court
concludes that, pursuant to 28 U.S.C. § 2679(d)(1), the United States is properly substituted for
defendants Samuy, Harmon, Southeast Alabama Rural Health Associates, and Newton Family
Health Associates as a party defendant with respect to the plaintiffs’ state law tort claims.
The court has jurisdiction of the plaintiff’s federal claims pursuant to its federal question
jurisdiction, 28 U.S.C. § 1331 and the jurisdictional grant in 28 U.S.C. § 1346(b) for the federal
tort claims. It has supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. §
Defendants Alabama CVS Pharmacy, LLC,1 CVS Health Corporation, and CVS
Pharmacy, Inc. filed a motion to dismiss in state court asserting that the plaintiffs have “failed
to comply with the pleading requirements of the Alabama Medical Liability Act, as amended
(“AMLA”) . . . and . . . failed to state a claim against any of the CVS defendants” because the
plaintiffs have failed to specifically identify any wrongdoing by these defendants. See Doc. #
1, Ex. 3. The United States has also filed a motion to dismiss pursuant to FED.R.CIV.P.
12(b)(1), asserting that this case is barred from review because this court lacks subject matter
jurisdiction. (Doc. # 4). The United States contends that the court lacks subject matter
jurisdiction over the plaintiffs’ tort claims because they have failed to exhaust their
This defendant asserts that it is improperly designated in the complaint as “Alabama CVS
Pharmacy, L.L.C., # 04862.”
administrative remedies. The plaintiffs have filed a response to the pending motions to dismiss
asserting that the United States’ motion to dismiss should be denied because they were unaware
of the need to exhaust, and the CVS defendants’ motion should be denied because they named
the entities that were known to them at the time the complaint was filed. See Doc. # 8. Pursuant
to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a United States
Magistrate Judge conducting all proceedings in this case and ordering the entry of final
After careful consideration of the United States’ motion to dismiss and the plaintiffs’
response in opposition to the motion, the court conclude that the United States’ motion is due
to be granted, and this case is due to be dismissed without prejudice.
A. United States’ Motion to Dismiss
The United States asserts that, pursuant to FED.R.CIV.P. 12(b)(1), this court lacks subject
matter jurisdiction over the plaintiffs’ claims. (Doc. # 5). The law is well-established that the
United States, as sovereign, is absolutely immune from suit unless it consents to be sued.
United States v. Sherwood, 312 U.S. 589, 586 (1941). Thus, the plaintiffs’ claims against the
United States are barred by the doctrine of sovereign immunity except as to those tort claims
for which Congress waived sovereign immunity and granted consent for the United States to
be sued. Because the United States has been substituted as a party defendant with respect to the
plaintiffs’ state law tort claims, the plaintiffs’ exclusive remedy is pursuant to the Federal Tort
Claims Act (“FTCA”). See 28 U.S.C. § 2679.2
Once the health care providers were certified by as employees of the Public Health
Service pursuant to 42 U.S.C. § 233(g), the plaintiffs’ sole remedy for medical malpractice
claims against them is a claim against the United States pursuant to the FTCA. However, a
prerequisite to filing suit under the FTCA is that “[a]n action . . . not be instituted . . . unless the
claimant [has] first presented the claim to the appropriate Federal agency and his claim [has]
been finally decided by the agency in writing and sent by certified or registered mail.” 28
U.S.C. § 2675(a). See also Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1236-37 (11th Cir.
2002). This administrative prerequisite is jurisdictional and cannot be waived. Id. at 1237
quoting Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th Cir. 1984).
On April 4, 2017, the court directed the plaintiffs to show cause why the United States’
motion to dismiss should not be granted. In response, the plaintiffs do not dispute the
government’s contention that they have failed to exhaust their administrative remedies. They
concede that they did not file an administrative claim with the appropriate authorities, primarily
because they were unaware of the necessity to do so. Consequently, the plaintiffs have failed
to establish that they have satisfied the jurisdictional prerequisite for this court to exercise
jurisdiction over their tort claims. See Lykins, 725 F.2d at 647 (a plaintiff must provide proof
Title 28 U.S.C. § 2679(b)(1) provides, in pertinent part, as follows:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for
injury or loss of property, or personal injury or death arising from the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his
office or employment is exclusive of any other civil action or proceeding for money
damages by reason of the same subject matter against the employee whose act or omission
gave rise to the claim or against the estate of such employee.
that he satisfied the jurisdictional requirements to institute suit against the government).
Therefore, the court concludes that the plaintiffs have failed to exhaust their administrative
remedies, and that the United States’ motion to dismiss with respect to the plaintiffs’ federal
claims against the health care providers pursuant to the FTCA is due to be granted.
B. State Law Claims against defendants the CVS defendants
Having determined that the court does not have jurisdiction over the plaintiffs’ federal
claims, the court declines to exercise supplemental jurisdiction over the plaintiffs’ state law
claims against the CVS defendants pursuant to 28 U.S.C. § 1367. These claims will be
dismissed without prejudice.
Accordingly, it is
ORDERED and ADJUDGED that the United States’ motion to dismiss be and is hereby
GRANTED, and that the plaintiffs’ federal claims against the health care provider defendants
be and are hereby DISMISSED without prejudice. It is further
ORDERED and ADJUDGED that the plaintiffs’ state law claims be and are hereby
DISMISSED without prejudice.
Done this 11th day of May, 2017.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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