King v. Kaze, DDS et al

Filing 13

ORDER signed by Judge Garland E. Burrell, Jr. on 9/2/2011 ORDERING that this action is DISMISSED for lack of subject matter jurisdiction and shall be closed. CASE CLOSED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARLA J. KING,
Plaintiff,

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v.

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JOHN A. KAZE, DDS, SHASTA
COMMUNITY HEALTH DENTAL CENTER,
and DOES 1 through 20,

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Defendants.
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2:11-cv-00864-GEB-CKD
ORDER DISMISSING ACTION FOR
LACK OF SUBJECT MATTER
JURISDICTION

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The United States of America moves to substitute itself as a

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Defendant in place of Defendants John A. Kaze, DDS, and Shasta Community

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Health

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Defendants”), and for an order dismissing this action for lack of

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subject matter jurisdiction. Plaintiff opposes the motion. Plaintiff’s

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Complaint is comprised of medical negligence and battery claims against

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the named Defendants.

Dental

The

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Center

United

(collectively

States

argues

it

referred

should

to

be

as

the

“named

substituted

as

a

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Defendant since the named Defendants were employees of the federal

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Public Health Service acting within their scope of employment at the

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time

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exclusive remedy for [such claims] is an action against the United

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States under the Federal Tort Claims Act [(“FTCA”)].” (Defs.’ Mot. 2:11-

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13.) The United States further argues that if the United States is

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substituted as a Defendant, there is no subject matter jurisdiction over

of

the

incidents

alleged

in

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Plaintiff’s

Complaint,

and

“the

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this

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remedies under the FTCA.

action

since

Plaintiff

has

not

exhausted

her

administrative

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“The FTCA provides the exclusive remedy for claims arising

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against individuals deemed to be employees of the United States Public

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Health Service . . . and acting within the scope of their employment at

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the time of the incident giving rise to the claim.” Lowery v. Reinhardt,

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No. 2:07-cv-00880-RRB-DAD, 2008 WL 550083, at *5 (E.D. Cal. Feb. 27,

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2008) (citing 42 U.S.C. § 201 et. seq.)

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[I]f the Attorney General certifies that a federal
government employee was acting within the scope of
employment when the tort occurred, then the United
States shall be substituted as the defendant in a
tort suit against the employee. 28 U.S.C. §
2679(d).
Upon
certification,
the
government
employee is dismissed from the suit, and is immune
from other civil actions arising from the alleged
tort. 28 U.S.C. § 2679(b)(1).

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Kashin

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certification

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substitution.” Billings v. United States, 57 F.3d 797, 800 (9th Cir.

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1995). However, the “[c]ertification . . . is prima facie evidence that

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a federal employee was acting in the scope of her employment at the time

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of the incident and is conclusive unless challenged.” Id.

v.

Kent,
is

457

F.3d

subject

1033,
to

1036-37

judicial

(9th
review

Cir.

2006).

for

“[T]he

purposes

of

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If the United States is substituted as a Defendant:

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A tort claimant may not commence proceedings in
court against the United States [under the FTCA]
without first filing her claim with an appropriate
federal agency and either receiving a conclusive
denial of the claim from the agency or waiting for
six months to elapse without a final disposition of
the claim being made.

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Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992). “This claim

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requirement of [the FTCA] is jurisdictional in nature and may not be

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waived.” Id. (internal quotation marks omitted).

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2

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The United States has established it should be substituted as

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a Defendant for the named Defendants. A United States Attorney, acting

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under authority vested in him by 28 C.F.R. § 15.4, certified that:

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On the basis of the information now available
with respect to the incidents referred to in
[Plaintiff’s] Complaint, [the named Defendants] are
deemed employees of the Public Health Service [and]
are deemed eligible by operation of law for the
official immunity of employees of the United States
acting within the scope of their employment at the
time of the alleged incidents giving rise to the
[C]omplaint.

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(Certification of Scope of Federal Employment ¶ 2.) Plaintiff has not

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challenged this certification. Therefore, the certification establishes

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that the named Defendants were Public Health Service employees acting

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within the scope of their employment when the alleged torts occurred;

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accordingly, the named Defendants are dismissed from this action, and

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the United States is substituted as a Defendant.

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The United States supports its argument that Plaintiff has not

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exhausted

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declaration of a Department of Health and Human Services attorney,

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Meredith Torres, who avers: “I caused a search of the [Health and Human

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Services’s] Claim’s Branch database to be conducted and found no record

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of an administrative tort claim filed by [Plaintiff] or an authorized

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representative relating to Shasta Community Health Center and John A.

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Kaze, DDS.” (Decl. of Meredith Torres ¶ 4.)

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her

administrative

remedies

under

the

FTCA

with

the

Plaintiff objects to Ms. Torres’s declaration on the ground

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that

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overruled, since “public records are an exception to the hearsay rule

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and testimony from a qualified agent is permitted to show ‘that diligent

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search

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compilation, or entry.’ [Further,] [a]s [a] public record[], the . . .

it

contains

failed

to

hearsay

disclose

and

[a]

lacks

foundation.

record,

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report,

This

objection

statement,

or

is

data

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database[]

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Mendez, 641 F.3d 1031, 1035 (9th Cir. 2011) (quoting Fed. R. Evid.

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803(10)).

[is]

self-authenticating.”

United

States

v.

Valdovinos-

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Plaintiff also objects to Ms. Torres’s declaration on the

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ground that it refers to the “Shasta Community Health Center,” but that

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“this lawsuit is against ‘Shasta Community Health Dental Center,’ and no

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evidence has been presented that [Shasta Community Health Dental Center]

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is a dba of ‘Shasta Community Health Center[.]’” (Pl.’s Objections to

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Decl. of Meredith Torres ¶ 2 (emphasis added).) The United States

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responded to this objection with a supplemental declaration from Ms.

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Torres, in which she avers: “One of the services that Shasta Community

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Health Center provides is dental care,” and that the dental care is

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provided at a clinic called Shasta Community Health Dental Center.

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(Supp.

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declaration contains two exhibits supporting her averment. Id. Exs. 2-3.

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This evidence establishes that there is no meaningful distinction

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between “Shasta Community Health Center” and “Shasta Community Health

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Dental Center;” therefore, Plaintiff’s objection is overruled.

Decl.

of

Meredith

Torres

¶

6.)

Ms.

Torres’s

supplemental

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Ms. Torres’s declarations and the attached exhibits establish

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that Plaintiff failed to exhaust her administrative remedies under the

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FTCA. Therefore, this action is dismissed for lack of subject matter

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jurisdiction, and shall be closed.

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Dated:

September 2, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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