Gevaert v. Community Health Center, Inc. et al

Filing 13

ORDER granting 10 Motion to Dismiss for Lack of Jurisdiction. The Complaint is hereby dismissed without prejudice and the Clerk is directed to close this case. Signed by Judge Michael P. Shea on 6/19/2014. (Best, Z)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTINA GEVAERT,
Plaintiff,

No. 3:14cv177 (MPS)

v.
COMMUNITY HEALTH CENTER,
INCORPORATED and TORY WESTBROOK, M.D.
Defendants.
MEMORANDUM OF DECISION
Plaintiff began this action against Defendants on August 16, 2013, alleging negligence
and medical malpractice on the part of Community Health Center, Inc. (―Community Health‖),
and Tory Westbrook, Plaintiff’s physician. On February 11, 2014, the United States Attorney’s
Office certified that Community Health was a federally supported health center and that
Westbrook was an employee of Community Health at the time of the relevant incident. (Notice
of Removal [Doc. #1] at ¶ 3.) Pursuant to the Federally Supported Health Centers Assistance
Act—which provides that the United States Attorney General may remove an action from state
court upon certifying that the defendant was acting in the scope of his employment at the time of
the incident, see 42 U.S.C § 233(c)—the claim was removed to this Court on February 11, 2014.
The exclusive remedy for claims alleging tortious conduct by a federally funded health care
center and its employees is under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
(―FTCA‖). See 42 U.S.C. § 233(g); see also Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 78 (2d Cir. 2005).
Defendants have moved to dismiss Plaintiff’s complaint under Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction, arguing that Plaintiff
failed to exhaust all administrative remedies before filing the complaint in district court. (Mem.

in Supp. of Defs.’ Mot. to Dismiss [Doc. #10-1] at 1.) ―The FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.‖ McNeil v. United
States, 508 U.S. 106, 113 (1993); 28 U.S.C. § 2675(a) (―An action shall not be instituted upon a
claim against the United States . . . unless the claimant shall have first presented the claim to the
appropriate Federal agency . . . .‖). Plaintiff concedes that she did not exhaust her available
administrative remedies before filing the underlying complaint. (Pl.’s Obj. to Mot. to Dismiss
[Doc. #11-1] at 5.) The Court therefore lacks subject matter jurisdiction over this case. See 28
U.S.C. § 2675(a); Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 301 (D. Conn. 2001) (―Thus
failure to file claims for tort damages with the appropriate agency precludes this court from
exercising jurisdiction over those claims.‖ (quoting Setlech v. United States, 816 F. Supp. 161,
165 (E.D.N.Y. 1993))). The proper course is to dismiss the case without prejudice, allowing
Plaintiff to institute a separate action once all administrative remedies have been exhausted.
Saleh v. Holder, 470 F. App’x 43, 44 (2d Cir. 2012) (holding that the district court erred by
dismissing plaintiff’s FTCA claims with prejudice); see also Snider v. Melindez, 199 F.3d 108,
111–12 (2d Cir. 1999).
I note that Defendants also urge the Court to conclude that dismissal is appropriate
because Plaintiff failed to file her administrative claim within the two-year statute of limitations
mandated by the FTCA. See 28 U.S.C. § 2401(b). The Court need not address the merits of that
issue at this time, as the Court has concluded that it lacks subject matter jurisdiction. The
question of when Plaintiff’s claim accrued, and whether her claim was timely filed, is best left
for the court or agency able to exert proper jurisdiction. Teresa T., 154 F. Supp. 2d at 301.

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For the foregoing reasons, Defendants’ Motion to Dismiss for lack of subject matter
jurisdiction is GRANTED IN PART. The Complaint is hereby dismissed without prejudice and
the Clerk is directed to close this case.

IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
June 19, 2014

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