Womack et al v. United States of America (MAG+)(LEAD)

Filing 32

REPORT AND RECOMMENDATION of the Magistrate Judge that: (1) The United States' 23 MOTION to Dismiss Plf Vernesia Lee Womack's Complaint and United States' 25 MOTION to Dismiss Ganesia L. Womack's Complaint be GRANTED; (2) Plfs ' claims be DISMISSED without prejudice pursuant to FRCP RULE 12(b)(1); (3) The United States' 23 MOTION for Summary Judgment be DENIED as moot; (4) Any outstanding motion be DENIED as moot; Objections to R&R due by 2/26/2009. Signed by Honorable Terry F. Moorer on 2/13/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION V E R N E S IA LEE WOMACK, et al., P l a i n t if f s , v. U N I T E D STATES OF AMERICA D e f e n d a n t. _________________________________ G A N E S IA L. WOMACK, P l a in tif f , v. U N IT E D STATES GOVERNMENT D E P A R T M E N T OF VETERAN A F FA IR S D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-534-WKW

) ) ) ) ) ) ) ) ) ) )

CASE NO. 2:08-cv-664-WKW

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P u r s u a n t to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United S ta te s Magistrate Judge for review and submission of a report with recommended findings o f fact and conclusions of law (Doc. 9, filed August 25, 2008). Now pending before the Court a re the United States' Motion to Dismiss Plaintiff Vernesia Lee Womack's Complaint and b rie f in support (Docs. 23-24, filed January 9, 2009), the United States' Motion to Dismiss G a n e sia L. Womack's Complaint (Doc. 25, filed January 9, 2009), Plaintiffs' Memorandum Page 1 of 19

in Opposition to Defendant's Motion for Dismissal of Complaint and Supporting Briefs (Doc. 2 9 , filed February 5, 2009), and the "United States' Reply" (Doc. 30, filed February 9, 2009).1 F o r good cause herein shown, it is the recommendation of the Magistrate Judge that the Court G R A N T the motions to dismiss. I . PARTIES AND COMPLAINT P r o se Plaintiff, Vernesia Lee Womack ("Vernesia Womack") is a resident of Ozark, A lab a m a , a location in the Middle District of Alabama. Vernesia Womack initiated this a c tio n on July 7, 2008. See Doc. 1, Complaint in Civ. Act. No.2:08-cv-534-WKW (M.D. Ala. 2 0 0 8 ). Initially she brought suit on behalf of herself and her five minor children. Id. On July 1 7 , 2008, the Court issued an order informing Vernesia Womack that she could not proceed p r o se on behalf of her children. See Doc. 6. Vernesia Womack was given until August 15, 2 0 0 8 to find counsel for her five children. Id. Instead, Vernesia Womack voluntarily d is m is s e d the claims of the five children. See Doc. 7, "Voluntary Dismissal" and Doc. 8, O rd e r granting dismissal. On August 18, 2008, pro se Plaintiff Ganesia L. Womack ("Ganesia Womack") filed h e r own lawsuit. See Doc. 1, Complaint in Civ. Act. No. 2:08-cv-664-WKW (M.D. Ala.

As specifically stated in the Court's order to show cause, at this time, the Court only considers Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Court stated that it would first address the issues raised by the motion to dismiss and not the alternative motion for summary judgment contained in the same document. Thus, Plaintiff Vernesia Womack was instructed to address only (1) the jurisdictional argument relating to the HIPAA claims and (2) whether the government can be held liable under the Federal Tort Claims Act for the actions of Dr. Smalheiser. As such, no evidence will be considered except that which relates to the establishment of jurisdiction. Page 2 of 19

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2 0 0 8 ). Ganesia Womack is one of the five children referenced by Vernesia Womack, but s u b s e q u e n tly reached the age of majority. She resides with her mother in Ozark, Alabama. T h e two separate actions involved common questions of law and fact, thus the Court c o n s o lid a te d the proceedings on August 25, 2008. See 2:08-cv-534 Doc. 10 and 2:08-cv-664 D o c . 4. Both Plaintiffs filed their respective motions to proceed in forma pauperis. See Docs. 2 in both cases. By Order filed August 25, 2008, the Court gave each plaintiff permission to proceed in forma pauperis. See Doc. 10, Order Granting IFP requests. P lain tiff Vernesia Womack asserts claims against the United States for inadequate m e d ic a l care and improper release of health information in violation of the Health Insurance P o rta b ility and Accountability Act of 1996 ("HIPAA"). See 2:08-cv-534 Doc. 1 at ¶ 6. She a l s o claims pain and suffering as well as mental anguish. Id. Vernesia Womack seeks d a m a g e s in the amount of three million dollars. Id. Vernesia Womack filed an administrative c laim pursuant to the requirements of the Federal Tort Claims Act and was notified her claim w a s denied. Id. at ¶ 4; see also id. at Exhibit 1 p. 2. V e rn e sia Womack specifically alleges on November 18, 2005 she went to the e m e rg e n c y room at Central Alabama Veteran Health Care System ("CAVHCS") Hospital in M o n tg o m e ry, Alabama because she was experiencing "severe upper gastric stomach pain." Id . at ¶ 5. She states she was examined by Dr. Stuart Smalheiser. Id. During the examination V e rn e sia Womack avers she was not given proper medical care and the doctors and staff acted in an unprofessional manner. Id. Vernesia Womack was given a CT scan, but states no

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f u rth e r medical care was provided that night. Id. Dr. Smalheiser made an appointment for V e rn e sia Womack to return the following Monday, November 21, 2005. On that day she re c e iv e d an ultrasound, but still received no resolution for her medical complaints. Id. As s u c h , she filed a complaint with Ed Brown, the Patient Advocate for Veterans. Id. Vernesia W o m a c k avers she remained in pain for the remainder of the week until she went to the Troy R e g io n a l Medical Center. Id. On or about November 25, 2005 she was admitted to the C A V H C S for emergency surgery which was then postponed until November 27, 2005. Id. D u rin g her stay at CAVHCS Vernesia Womack alleges the nurses violated provisions of H IP A A by publically mocking her at the nurses station. Id. In her complaint Plaintiff Ganesia Womack asserts "[i]t is the States' constitutional d u t y to enforce laws against abuse and to ensure the physical and emotional safety of its c itiz e n s." See 2:08-cv-664 Doc. 1 at ¶ 5. She further alleges her constitutional right "not to b e personally injured or abused has been infringed upon by the doctors and nurses assigned t o Vernesia Womack at the VA Medical Center in Montgomery, Alabama." Id. Ganesia W o m a c k claims mental anguish and emotional distress and seeks damages in the amount of $ 3 0 0 ,0 0 0 .0 0 . Id. at ¶ 6. I I . MOTIONS TO DISMISS O n January 9, 2009, the United States filed two motions to dismiss. See Docs. 23-25. T h e first motion to dismiss relates to the claims filed by Vernesia Womack. See Docs. 23-24. In the motion, the United States asserts that HIPAA does not create a private right of action

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a n d does not waive sovereign immunity. Further, the United States asserts the physician r e f e re n c e d by Vernesia Womack - and whose actions are the underlying basis for her claims is not an employee of the United States, but rather an independent contractor. Id. Thus, the U n ite d States would be immune from suit. Id. In the second motion to dismiss, the United S ta te s asserts Ganesia Womack's claims should be dismissed because retains its sovereign im m u n ity in cases involving constitutional torts. See Doc. 25. On February 5, 2009, the Plaintiffs filed a joint response to the motions to dismiss. See D o c . 29. In the response, Plaintiffs cite a case and state HIPAA violations can be grounds for s ta te tort law claims. Id. at p. 2. After a detailed recitation of the facts, Plaintiffs also state D r. Smalheiser was an employee of the VA Hospital because he was a participant in a VA f e llo w s h ip program. Id. at p. 5-7. Plaintiffs made no reference to the motion to dismiss G a n e sia Womack's claims or its legal assertions for dismissal. O n February 9, 2009, the United States filed its reply to Plaintiffs' response. The U n i t e d States avers Ganesia Womack abandoned her claims because she failed to address th e m in her response to the motion to dismiss. Id. at p. 2. The United States also states V e r n e s ia Womack has not asserted a state tort law claim in her Complaint and cannot do so in her response. Id. at p. 2-5. Further, the United States notes federal courts have rejected the id e a that a private party can sue for HIPAA violations. Id. at p. 4. Finally, the United States reitera tes that Dr. Smalheiser was an independent contractor despite Plaintiffs conclusory s ta te m e n ts to the contrary. Id. at p. 5-9. For this reason, the United States contends the Court

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is deprived of subject matter jurisdiction. Both motions to dismiss were fully submitted on F e b ru a ry 9, 2009 and are ripe for judicial review. I I I. STANDARD OF REVIEW A ll litigants, pro se or not, must comply with the Federal Rules of Civil Procedure. A lth o u g h the court is required to liberally construe a pro se litigant's pleadings, the court does n o t have "license to serve as de facto counsel for a party. . .or to rewrite an otherwise deficient p le a d in g in order to sustain an action." GJR Investments, Inc. v. County of Escambia, Fla., 1 3 2 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). A. F e d e r a l Rule Civil Procedure 12(b)(1) - Lack of Subject Matter Jurisdiction A Rule 12(b)(1) motion directly challenges the district court's subject matter ju ris d ic tio n . Gilmore v. Day, 125 F.Supp.2d 468, 470 (M.D. Ala. 2000). A motion to dismiss f o r lack of subject matter jurisdiction may occur either facially or factually. Makro v. Capital o f America, Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (citing Morrison v. Amway C o r p ., 323 F.3d 920, 925 n.5 (11th Cir. 2003)); Stalley v. Orlando Regional Healthcare Sys., In c ., 524 F.3d 1229, 1232 (11th Cir. 2008) (citing McElmurray v. Consol. Gov't of AugustaR ich m o n d County, 501 F.3d 1244, 1251 (11th Cir. 2007)). A "facial attack" is based solely o n the pleadings and requires the court to assess whether the plaintiff has alleged a sufficient b a s is for subject matter jurisdiction. Stalley, 524 F.3d at 1232-33; Morrison, 323 F.3d at 925 n . 5.; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Further, for the purposes o f the court's analysis, the allegations in the plaintiff's complaint are taken as true. Id.

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O n the other hand, a "factual attack" challenges "subject matter jurisdiction in fact, i rr e s p e c tiv e of the pleadings." Morrison, 323 F.3d at 925. The burden of proof on a Rule 1 2 (b )( 1 ) motion is on the party averring jurisdiction. Gilmore, 125 F.Supp.2d at 471 (citing T h o m so n v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942)). Further, in re so lv in g a factual attack, the court "may consider extrinsic evidence such as testimony and a f fid a v its ." Makro, 543 F.3d at 1258 (quoting Morrison, 323 F.3d at 925 n. 5); accord S ta lle y , 524 F.3d at 1233; Miccosukee Tribe of Indians of Florida v. U.S., E.P.A., 105 F.3d 5 9 9 , 603 (11th Cir. 1997). The trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case without presuming the truthfulness of the p la in tif f 's allegations." Makro, 543 F.3d at 1528 (internal quotations omitted). In other w o rd s , "the district court should apply a summary judgment standard when ruling on the m o tio n to dismiss as a factual attack on subject matter jurisdiction." Miccosukee Tribe, 105 F .3 d at 603 (citing Lawrence, 919 F.2d at 1530). B. F e d e r a l Rule Civil Procedure 12(b)(6) - Failure to State a Claim A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. G ilm o r e , 125 F. Supp.2d at 471. To survive a motion to dismiss for failure to state a claim, th e plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." B e ll Atlantic Corp. v. Twombly, 550 U.S. 544, --, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2 0 0 7 ). In considering a defendant's motion to dismiss, the "court must view the complaint in the light most favorable to the plaintiff and accept all the plaintiff's well-pleaded facts as

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tru e ." Am. United Life Ins. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (citing St. J o s e p h 's Hosp. Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986)). In other w o rds, in deciding a 12(b)(6) motion to dismiss, the court will accept the petitioner's a lle g a tio n s as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L. E d .2 d 59 (1984); Ellis v. General Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1 9 9 8 ); Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998) (citing L o p e z v. First Union National Bank of Florida, 129 F.3d 1186, 1189 (11th Cir. 1997)). H o w e v e r, "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions m a sq u e ra d in g as facts will not prevent dismissal." Jackson v. BellSouth Telecomms., 372 F . 3 d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1 1 8 2 , 1188 (11th Cir. 2002)); see also Associated Builders, Inc. v. Alabama Power Co., 505 F .2 d 97, 100 (5th Cir. 1974) (conclusory allegations and unwarranted deductions of fact are n o t admitted as true).2 T h u s , a complaint should be dismissed "when the allegations in a complaint, however tru e , could not raise a claim of entitlement to relief." Twombly, 550 U.S. at -- , 127 S.Ct. at 1966. Further, "this basic deficiency should ... be exposed at the point of minimum

e x p e n d itu re of time and money by the parties and the court." Id. (citations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Page 8 of 19

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a lle g a tio n s , a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' r e q u ire s more than labels and conclusions, and a formulaic recitation of the elements of a c a u se of action will not do." Id. at 1964-65 (citations omitted). Factual allegations must be e n o u g h to raise a right to relief above the speculative level. Id. Thus, it does not require a h e ig h ten e d fact pleading of specifics, but only enough facts to state a claim to relief that is p la u s ib le on its face. Id. at 1974. It is not enough that the pleadings merely "le[ave] open the possibility that the plaintiff might later establish some set of undisclosed facts to support r e c o v e r y. " Id. at 1968 (internal quotation and alteration omitted). Consequently, the

th re sh o ld for a complaint to survive a motion to dismiss is "exceedingly low." Ancata v. P r is o n Health Services, Inc., 769 F.2d 700, 703 (11th Cir. 1985). I V . DISCUSSION AND ANALYSIS A. C o n s titu tio n a l Tort Claims T h e Federal Tort Claims Act, ("FTCA"), 28 U.S.C. §§ 2671- 2680, provides in part that the United States "shall be liable, respecting the provisions of this title relating to tort c la im s , in the same manner and to the same extent as a private individual under like c irc u m s ta n c es ." 28 U.S.C. § 2674. However, it is well established that the United States has n o t rendered itself liable for constitutional tort claims. F.D.I.C. v. Meyer, 501 U.S. 471, 478, 1 1 4 S.Ct. 996, 1001, 127 L.Ed.29d 308 (1994); see also Brewer v. C.I.R., 430 F.Supp.2d 1 2 5 4 , 1259 (S.D. Ala. 2006) (citations omitted) ("Since the FTCA does not provide a source o f waiver for any of plaintiff's claims for damages arising out of common law torts or

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c o n stitu tio n a l violations, the claims are due to be dismissed.") I n this case, Ganesia Womack's sole allegations are as follows: It is the States' constitutional duty to enforce laws against abuse and to ensure th e physical and emotional safety of its citizens. In contradiction to United S ta te s Constitution, my constitutional right not to be personally injured or a b u se d has been infringed upon by the doctors and nurses assigned to Vernesia W o m a c k at the VA Medical Center in Montgomery, Alabama. S e e Doc. 1 at ¶ 5 in 2:08-cv-664. As she clearly asserts constitutional tort claims there is no w a iv e r of sovereign immunity. Consequently, the court is deprived of jurisdiction and G a n e sia Womack's claims are due dismissal. In addition, to the extent Vernesia Womack m a y assert constitutional tort claims, those too are due dismissal. B. H I P A A claims W h e n there is no allegation of diversity jurisdiction, the Court must have original ju ris d ic tio n to proceed. Federal district courts have "original jurisdiction of all civil actions a risin g under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331; see a ls o City of Huntsville v. City of Madison, 24 F.3d 169, 171 (11th Cir. 1994) (citing statute). F e d e ra l question jurisdiction may be based on a civil action alleging a violation of the United S ta te s Constitution or a federal cause of action established by a Congressionally-created e x p re ss e d or implied private remedy for violations of a federal statute and in limited c irc u m s ta n c es , federal question jurisdiction may also be available if a substantial, disputed q u e s tio n of federal law is a necessary element of a state cause of action. City of Huntsville, 2 4 F.3d at 171-72 (citations omitted). "[O]nce a court determines that there has been no grant

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th a t covers a particular case, the court's sole remaining act is to dismiss the case for lack of ju ris d ic tio n ." Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000); accord B a r n e tt v. Bailey, 956 F.2d 1036, 1039-41 (11th Cir. 1992) (holding that a court is required to examine its jurisdiction over an action at any time and dismiss an action sua sponte for lack o f subject matter jurisdiction if jurisdiction is not found.). In her complaint, Vernesia Womack rests her claims "on the grounds of HIPAA V io la tio n s , Delayed Treatment, Mental Anguish, and Pain and Suffering." See 2:08-cv-534 D o c . 1 at ¶ 6. The Court will first address the question of whether Vernesia Womack can b rin g a claim pursuant to HIPAA. HIPAA imposes requirements on the Department of Health and Human Services, h e a lth plans, and healthcare providers involved in the exchange of health information to p rotec t the confidentiality of such information. 42 U.S.C. §§ 1320d-1 to d-7. However, H IP A A has no express provision creating a private cause of action. Moreover, this Court has a lre a d y determined that HIPAA does not create a private cause of action. Means v. Indep. L ife and Acc. Ins. Co., 963 F.Supp. 1131, 1135-36 (M.D. Ala. 1997); Green v. Roberts, 2008 W L 4767471, *5 (M.D. Ala. 2008) (Watkins, J.) (unpublished) (citations omitted). As such, H IP A A does not convey federal jurisdiction. In her response, Vernesia Womack states "[a]lthough HIPAA does not specifically c re a te any right for an individual to sue in Federal court over breaches of privacy, HIPAA v io latio n s can be grounds for state tort actions because HIPAA regulations create a new `duty

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o f care' with respect to the protection of the confidentiality of patient health information and it is further stated that HIPAA does not preempt state law." See Doc 29 at p. 2. With this, she c ite s Acosta v. Byrum, 638 S.E.2d 246 (N.C. Ct. App. 2006) which is a case from North C a ro lin a 's intermediate appellate court. The North Carolina appellate court held that the p l a in t if f ' s negligent infliction of emotional distress claim brought against her psychiatrist s h o u ld not have been dismissed because it was brought under North Carolina law. Id. at 253. F u rth e r, violations of HIPAA could be used as evidence in support of that claim. Id. Plaintiff d o e s not make it clear how Acosta is applicable to her case since she does not assert any state la w tort claims in her Complaint. See 2:08-cv-534 Doc. 1 generally. H o w e v e r, assuming arguendo that Vernesia Womack is asserting a claim for negligent in f lic tio n of emotional distress,3 Alabama does not recognize that particular cause of action. G id e o n v. Norfolk Southern Corp., 633 So.2d 453, 453-54 (Ala. 1994); Allen v. Walker, 569 S o .2 d 350, 352 (Ala. 1990); see also Taylor v. Alabama, 95 F.Supp.2d 1297, 1318 (M.D. Ala. 2 0 0 0 ) (citations and internal quotations omitted) (The Supreme Court of Alabama has held th e re is no cause of action for the negligent infliction of emotional distress.). Therefore, any su c h claim would be due dismissal. B a se d on the above, Vernesia Womack's claims under HIPAA fail to convey

As previously stated, there does not appear to be a state law tort claim in her complaint. However, it is noted that pro se pleadings are to be afforded a liberal construction. Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988). Therefore, the court will address a claim for negligent infliction of emotional distress because it is referenced in the response to the motion to dismiss. In this Court's view, there are no other state law tort claims referenced in the complaint or the response. Page 12 of 19

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ju ris d ic tio n on this Court and therefore must be dismissed. C. M a lp r a c tic e /D e la y e d Treatment Claim under FTCA T h e FTCA "grants the federal district courts jurisdiction over a certain category of c laim s for which the United States has waived its sovereign immunity and rendered itself lia b le ." Meyer, 471 U.S. at 477, 114 S.Ct. at 1001 (citing Richards v. United States, 369 U.S. 1 , 82 S.Ct. 585, 589, 7 L.Ed.2d 492 (1962)). However, that sovereign immunity is only w a iv e d when the negligent or wrongful act was committed by an "employee of the G o v e rn m e n t while acting within the scope of his office or employment." 28 U.S.C. § 1 3 4 6 (b )(1 ). The United States has not waived its sovereign immunity for the actions of "any c o n tra c to r with the United States." 28 U.S.C. § 2671. Because Vernesia Womack rests her c la im s on the actions of Dr. Smalheiser, she must establish that he was an employee, and not a contractor, of the United States. Plaintiff states Dr. Smalheiser was an employee while D e f e n d a n t avers he was merely a contractor. "In the face of a factual challenge to subject matter jurisdiction, the burden is on the p la in tif f to prove that jurisdiction exists." OSI, Inc. v. United States, 285 F.2d 947, 951 (11th C ir. 2002) (citations omitted). Factual attacks on a court's subject matter jurisdiction

" c h a l le n g e the existence of subject matter jurisdiction in fact, irrespective of the pleadings, a n d matters outside the pleadings, such as testimony and affidavits, are considered." Garcia v . Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997) (citation and internal q u o tation s omitted).

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A lon g with the motion to dismiss the United States submitted an affidavit from Dr. S m a lh e is e r wherein he clearly states he was an independent contractor. See Doc. 24 Exhibit 1 ¶¶ 3-4. Plaintiff, in her response to the motion to dismiss, avers Dr. Smalheiser was a p a rtic ip a n t in a Fellowship program funded by Veterans Affairs. See Doc. 29 at p. 5-7. She f u rth e r asserts that he was under the direct control and supervision of the VA Administration. Id . Vernesia Womack submits several exhibits which she contends support her statements. S e e Doc. 29 Exhibits 3-5. Exhibit 3 appears to be a physician's profile printout from the F lo rid a Department of Health. Exhibits 4 and 5 appear to be excerpts from a Veteran's Health A d m in is tra tio n Handbook. The United States disputes Plaintiff's assertions and submits an a d d itio n a l affidavit from Dr. Smalheiser. See Doc. 30, Exhibit 6. Dr. Smalheiser affirms he n e v e r participated in the VA Fellowship, was an independent contractor, and exercised in d e p e n d e n t clinical judgment while treating patients at CAVHCS. Id. As previously noted, the court should apply a summary judgment standard when ruling o n a motion to dismiss which factually attacks subject-matter jurisdiction. See Miccosukee T r ib e , 105 F.3d at 603 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990). T h u s , the same rules regarding evidence would apply and the court is free to weigh the e v id e n c e . The United States asserts Plaintiff's exhibits constitute hearsay and therefore cannot b e considered when using a summary judgment standard. Hearsay is defined as "a statement, o th e r than one made by the declarant while testifying at the trial or hearing, offered in

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e v id e n c e to prove the truth of the matter asserted." FED. R. EVID. 801(c). Generally, hearsay is not admissible. FED. R. EVID. 802. Inadmissible hearsay generally "cannot be considered o n a motion for summary judgment." Macuba v. Deboer, 193 F.3d 1316, 1322 (11th C ir.1 9 9 9 ). The exception is that otherwise admissible evidence may be "submitted in in a d m is s ib le form at the summary judgment stage, though at trial it must be submitted in a d m is s ib le form." McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (emphasis o m i tt e d ) . A review of Vernesia Womack's exhibits reveals they constitute hearsay and she has n o t established that they are otherwise admissible. Thus, the Court cannot consider them, e sp e c ia lly since the United States has submitted admissible evidence to the contrary in the f o r m of Dr. Smalheiser's affidavits. In other words, the United States has issued specific f a ctu a l denials that challenge Vernesia Womack's allegation that Dr. Smalheiser was an e m p lo ye e of the government. These specific factual declarations - which are within affiant D r. Smalheiser's personal knowledge - are sufficient to shift to the Plaintiff the burden of p ro d u c in g evidence supporting jurisdiction. United Techs. Corp. v. Mazer, -- F.3d -- , 2009 W L 263329, *11 (11th Cir. 2009) (citation omitted). Vernesia Womack attempted to respond an d establish jurisdiction by making unsworn statements regarding her perception that Dr. S m a lh e is e r was a participant in a VA Fellowship program and therefore was an employee of th e VA. "Unsworn statements, even from pro se parties, should not be considered in d e te rm in in g the propriety of summary judgment." McCaskill v. Ray, 279 Fed. Appx. 913, 915

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( 1 1 th Cir. 2008) (unpublished) (quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1 9 8 0 )). Therefore, Vernesia Womack's unsworn assumptions and statements regarding Dr. S m a lh e is e r' s status cannot be considered. Based on the above, the Court concludes Plaintiff proffered no competent evidence to e sta b lish jurisdiction in opposition to the denials of the jurisdictional allegations contained in D r. Smalheiser's affidavit. As a result, she has not met her burden of establishing jurisdiction a n d consequently the claims must be dismissed. D. S ta te law claims It does not appear from the face of the complaints that there are any assertions of state l a w claims. Regardless, in view of this Court's determination that there is no federal ju ris d ic tio n for Plaintiffs' claims, the court concludes that any supplemental state law claims a lso warrant dismissal. S u p p lem e n tal jurisdiction over any state-law claims would not be not appropriate b e c au s e the federal claims are being dismissed for lack of subject-matter jurisdiction under F ed . R. Civ. P. 12(b)(1). A Rule 12(b)(1) "dismissal [of the federal claims] means that there n e v e r was a valid claim within the court's original jurisdiction to which the state claim may b e supplemental." Auburn Med. Center, Inc. v. Cobb, 567 F.Supp.2d 1333, 1340 (M.D. Ala. 2 0 0 8 ) (quoting Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2 0 0 1 )); see also Rifkin v. Bear Stearns & Co., 248 F.3d 628, 631-633 (7th Cir. 2001) (court c o u ld not exercise supplemental jurisdiction over state-law claims because it lacked

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su b ject-m atter jurisdiction over the federal claims); Saksenasingh v. Sec'y of Educ., 126 F.3d 3 4 7 , 351 (D.C. Cir. 1997) (if the district court "dismissed the underlying claim on ju risd ictio n a l ground, then it could not exercise supplemental jurisdiction." ); Musson T h e a tr ic a l, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) ( "[a] 12(b)(1) d i sm is s a l postulates that there never was a valid federal claim." ); Nowak v. Ironworkers L o c a l 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996) (explaining that a district court " c an n o t exercise supplemental jurisdiction unless there is first a proper basis for original f e d era l jurisdiction.") (citation omitted). Therefore, this court lacks supplemental jurisdiction o v e r any state-law claims asserted by Plaintiffs. E. D is m is s a l without Prejudice In its motion to dismiss Vernesia Womack's claims, the United States requests that the c la im s be dismissed with prejudice. See Doc. 23 at p. 2 (emphasis added). That request is due d e n ia l because the dismissal is a Rule 12(b)(1) for lack of subject matter jurisdiction. "A d is m is s a l for lack of subject matter jurisdiction is not a judgment on the merits and is entered w ith o u t prejudice." Stalley, 524 F.3d at 1232 (citing Crotwell v. Hockman-Lewis Ltd., 734 F .2 d 767, 769 (11th Cir. 1984); see also Klos v. Paulson, 2009 WL 205622, *1 (11th Cir. 2 0 0 9 ) (unpublished) (citing Stalley and its explanation that a Rule 12(b)(1) dismissal is e n te re d without prejudice). While the United States submitted its motion to dismiss under b o th Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the court concludes all the claims are due dismissal u n d e r Rule 12(b)(1) and therefore must be dismissed without prejudice.

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V . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that (1) T h e United States' Motion to Dismiss Plaintiff Vernesia Lee Womack's C o m p la in t (Doc. 23) and United States' Motion to Dismiss Ganesia L. W o m a c k 's Complaint (Doc. 25) be GRANTED. (2 ) P la in tif f s' claims be DISMISSED without prejudice pursuant to FED. R. CIV. P . RULE 12(b)(1). (3 ) T h e United States' Motion for Summary Judgment (Doc. 23) be DENIED as m o o t. (4 ) A n y outstanding motions be DENIED as moot.

I T IS FURTHER ORDERED that the parties file any objections to the this R e c o m m e n d a tio n on or before February 26, 2009. Any objections filed must specifically i d e n t if y the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. The parties are advised that this Recommendation is not a final order of the court and, th e re f o re , it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain

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e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ). D O N E this 13th day of February, 2009. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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