Gabriel v. Peak Vista Health Center, et al

Filing 14

ORDER; 8 Defendant's Motion to Substitute the United States as the Sole Defendant for Plaintiff's Claim under the Federal Torts Claims Act is GRANTED. The Clerk of Court is directed to substitute the United States of America for Defendant Marsha Alger. tTe United States shall answer or otherwise respond to Plaintiffs Complaint no later than March 26, 2015. terminating 9 Motion to Quash, by Magistrate Judge Kathleen M. Tafoya on 3/5/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–03022–KMT
VINCENT GABRIEL,
Plaintiff,
v.
MARSHA ALGER,
Defendant.

ORDER

This matter is before the court on “Defendant’s Motion to Substitute the United States as
the Sole Defendant for Plaintiff’s Claim under the Federal Torts Claims Act.” (Doc. No. 8, filed
Nov. 11, 2014.) On December 1, 2014, Plaintiff filed a “Motion to Quash Exoneration of
Defendant, Marsha Alger, from the Proceedings of Civil Action: 14-cv-3022-KMT,” (Doc. No.
9), which the court deems to be a response to Defendant’s Motion to Substitute. On December 5,
2014, Defendant filed a “Response to Plaintiff’s Motion to Quash Exoneration of Defendant”
(Doc. No. 12), which the court deems to be a Reply in support of the Motion to Substitute. For
the following reasons, the Motion to Substitute is GRANTED.
In his Complaint, filed November 7, 2014, Plaintiff alleges that he saw Defendant Marsha
Algar, M.D., a physician at Peak Vista Community Health Centers, to address injuries arising
from an assault he suffered on July 15, 2013. (Compl., Doc. No 3, at 2.) Plaintiff alleges that
Dr. Alger “would not even listen to [him] as a patient even though it was his first time to meet

her and he was in pain.” (Id.) Plaintiff alleges that Dr. Alger saw all documents and
photographs of his injury, but noted in his medical records that Plaintiff may have demonstrated
“possible malingering.” (Id.) Plaintiff alleges that Dr. Alger’s attitude and conduct exacerbated
his medical conditions and inflicted emotional trauma and anxiety. Plaintiff also alleges that he
suffered a gastrointestinal bleed that nearly took his life. (Id.) Based on these allegations,
Plaintiff seeks $30,000 in damages. (Id.)
On November 7, 2014, the United States filed a notice of removal of this action from El
Paso County District Court pursuant to 28 U.S.C. § 1441(a) and 1442(a)(1). (Notice of
Removal, Doc. No 1.) Attached to the Notice of Removal is a Notice of Deeming Action
whereby the United States Department of Health and Human Services (“HHS”) deemed Peak
Vista Community Health Centers, and any of its employees, to be employees of the United States
Public Health Service. (Doc. No. 1-1.) See also 42 U.S.C. § 233(h) (outlining circumstances
under which HHS may designate an entity as a PHS employee).
In the Motion to Substitute, Dr. Alger moves under 28 U.S.C. § 2679 to substitute the
United States of America as the sole defendant with respect to Plaintiff’s claims for relief. The
court agrees that substitution is appropriate.
“An FTCA action against the United States is the sole remedy for any injury to person or
property caused by the negligent or wrongful acts of a federal employee acting within the scope
of his or her employment.” Woodruff v. Covington , 389 F.3d 1117, 1126 (10th Cir. 2004)
(citing 28 U.S.C. § 2679(b)(1)). Removal of any civil action and substitution of the United
States is proper “[u]pon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out of which the

2

suit arose.” 28 U.S.C. §§ 2679(d)(1) & (2). The certification “shall conclusively establish scope
of office or employment for purposes of removal.” 28 U.S.C. § 2679(d)(2). Certification is also
conclusive for the purpose of substitution. Aviles v. Lutz, 887 F.2d 1046 at 1049 (10th Cir.
1989). Furthermore, such an action “shall proceed in the same manner as any action against the
United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations
and exceptions applicable to these actions.” 28 U.S.C. § 2679(d)(4).
The United States Attorney General, through the United States Attorney for the District
of Colorado and pursuant to 28 C.F.R. § 15.3, has certified that Dr. Alger was acting within the
scope of her employment as an employee of the United States at the time of the incident alleged
in Plaintiff’s Complaint. (Mot., Ex. A.) Plaintiff maintains that substitution should not be
allowed because it would have the effect of “exonerating” Dr. Alger for her alleged negligent
acts. (See generally Resp.)
The rule in the Tenth Circuit, however, is that certification conclusively establishes the
scope of employment for purposes of removal and substitution. Aviles, 887 F.2d at 1049
(“[o]nce the attorney general decides under subsection (d)(1) to certify an action, the substitution
of the United States as a defendant does not admit of discretion.”). But see S.J. & W. Ranch, Inc.
v. Lehtinen, 913 F.2d 1538, 1540-44 (11th Cir. 1990); Melo v. Hafer, 912 F.2d 628, 641 (3d Cir.
1990); Nasuti v. Scannell, 906 F.2d 802, 812-13 (1st Cir. 1990); Arbour v. Jenkins, 903 F.2d
416, 421 (6th Cir. 1990). The Attorney General need not provide more than the certificate. 28
U.S.C. § 2679(d)(1) & (2). Further, notwithstanding Plaintiff’s protest that substitution will have
the effect of “exonerating” Dr. Alger, the precise purpose of the FTCA’s exclusive remedy
provision is “to give federal employees an absolute immunity from common law tort actions”

3

arising out of acts undertaken within the scope of their employment. Woodruff v. Covington, 389
F.3d 1117, 1126 (10th Cir. 2004) (quotation marks and citation omitted). Accordingly, pursuant
to the FTCA, the United States will be substituted as the sole defendant with respect to Plaintiff’s
claims for relief in this action.
Therefore, it is
ORDERED that “Defendant’s Motion to Substitute the United States as the Sole
Defendant for Plaintiff’s Claim under the Federal Torts Claims Act” (Doc. No. 8) is GRANTED.
The Clerk of Court is directed to substitute the United States of America for Defendant Marsha
Alger. It is further
ORDERED that the United States shall answer or otherwise respond to Plaintiff’s
Complaint no later than March 26, 2015.
Dated this 5th day of March, 2015.

4