Caldwell v. Klinker et al
Filing
36
ORDER granting 33 Motion to Dismiss. The Clerk is directed to close the case. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/15/2015. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEITH ROBERT CALDWELL, SR.,
Plaintiff,
v.
Case No. 8:14-cv-2708-T-33EAJ
U.S. DEPARTMENT OF VETERANS
ADMINISTRATION, U.S. DEPARTMENT
OF HEALTH & HUMAN SERVICES, and
HOSPITAL CORPORATION OF AMERICA
HOLDINGS, INC.,
Defendants.
/
ORDER
This matter comes before the Court pursuant to the Motion
to Dismiss Third Amended Complaint filed by the United States
on February 20, 2015. (Doc. # 33).
Plaintiff Keith Robert
Caldwell, Sr. filed a pro se Response in Opposition to the
Motion on March 31, 2015. (Doc. # 35).
The Court grants the
Motion.
I.
Background
This case has a complex procedural history, as can be
discerned from the fact that the Government’s present Motion
to Dismiss is aimed at Caldwell’s construed Third Amended
Complaint.
Without touching upon the merits of the action,
the Court preliminarily notes that Caldwell’s submissions,
including
his
Third
Amended
Complaint,
are
presented
in
narrative form, are not organized into numbered paragraphs or
counts, and are peppered with aspersions and profanities.
Nonetheless, the Court will attempt to accurately describe the
facts leading to the filing of this lawsuit as follows.
A.
Caldwell’s Medical Condition
Caldwell “is a 90% military service connected disable[d]
veteran.” (Doc. # 32 at 11). Caldwell has suffered from
blackout and falling episodes since the Spring of 2012. (Id.
at 9). In February of 2014, Caldwell fell in Tennessee and
sustained a concussion. (Id.).
“After the February 2014
incident, the episodic blackouts began to occur multiple
times, on a weekly basis.” (Id.).
Caldwell sought treatment for his condition at the Bay
Pines Veterans hospital in St. Petersburg, Florida, and he
claims that he fell down two times “on VA Bay Pines healthcare
property; one of the two falls required 8-hours treatment at
the VA Bay Pines healthcare Emergency Room.” (Id. at 10). In
May of 2014, Caldwell requested “a medical referral to the Bay
Pines office that serves as the primary authority to evaluate
veterans’ qualification for a power wheelchair.” (Id. at 8).
However, Caldwell was not issued a power wheelchair.
On August 16, 2014, Caldwell broke his neck in a blackout
episode that occurred at Bright House Field in Clearwater,
Florida. (Id. at 14). Although the present Complaint does not
2
describe the incident at Bight House Field, Caldwell’s initial
Complaint explains that he was attending a baseball game on
August 16, 2014. (Doc. # 1 at 9).
“Prior to the injury, the
plaintiff had asked the BHF associate manning section 113 to
permit him to sit in the handicap section at the top of the
bleacher area.
The associate informed the plaintiff that
seating in the handicap area requires a special ticket.”
(Id.). During the game, Caldwell went to the concession stand
to buy ice cream, but he blacked out on his way back to his
seat: “While descending the bleachers the plaintiff became
dizzy, wobbly, and then blackout occurred.” (Id.).
Caldwell
was rushed to the nearest hospital: Countryside hospital of
Florida. (Id.).
Countryside
Caldwell had cervical spine surgery at
Hospital
at
Clearwater,
Florida
and
was
transferred to Palms of Pasadena Hospital for rehabilitation
on September 2, 2014. (Id.).
During this time, a Palms of
Pasadena
Caldwell
physician
diagnosed
with
“Shy
Dragger
Syndrome,” which explained the “episodic dizziness, loss of
balance, and subsequent blackouts.” (Id.). Caldwell indicates
that Shy Dragger Syndrome is “a terminal illness.” (Doc. # 32
at 15).
Caldwell provides that, in addition to his physical
ailments, he also suffers from mental health issues. Prior to
3
breaking his neck, Caldwell participated in the “Psycosocial
Rehabilitation Recovery Center (PRRC) at Bay Pines.” (Id. at
11).
However, after breaking his neck, he was unable to
participate in the program. (Id.).
“The absence of mental
health care that was provided at the PRRC program led to
regression
of
the
plaintiff’s
mental
health
resulted in returning thoughts of suicide.
medication
for
his
mental
which
The patient had
attempted suicide in February 2014.” (Id.).
takes
state
health
Caldwell, who
issues,
was
institutionalized in Clearwater, Florida for two months.
(Id.).
During his September, 2014, stay at Palms of Pasadena,
Caldwell “voluntarily agreed to exercise the Baker Act on
himself, in order to get a hospital bed at Bay Pines postrehab.” (Id.). Caldwell explains: “Palms of Pasadena does not
have a mental health ward.
The hospital was not equipped to
assist a person in need of mental health services.” (Id.).
According to Caldwell: “For three days in September 2014, the
Bay
Pines
medical
center
staff
flip
flopped,
lied,
and
discouraged transfer of the Plaintiff to Bay Pines for much
needed mental health support.
The Palms of Pasadena hospital
ran out of options thus discharge was enacted on September 13,
2014.” (Id.).
Caldwell asserts that “Bay Pines chose to
4
ignore a 90% disable[d] veteran when he screamed out for
help.” (Id. at 12).
B.
Caldwell’s Dissatisfaction with Services Provided
Caldwell maintains that he was the victim of “horrendous”
and “substandard medical care, incompetence and malpractice.”
(Id. at 8).
While Caldwell’s operative Complaint does not
clearly and succinctly list his precise contentions, the Court
surmises that he blames the VA for his neck injury based on
the VA’s alleged failure to diagnose his symptoms and failure
to issue a power wheelchair upon his request. He also argues
that the VA improperly declined to admit him after he was
Baker Acted at Palms of Pasadena.
As for Palms of Pasadena, Caldwell claims that he was not
promptly provided prescribed medications upon his hospital
admission.
of
He also alleges that he was discharged in a Palms
Pasadena
wheelchair
such
that
he
“had
to
entertain
questions in regards to whether or not he had stolen the
wheelchair
from
Palms
of
Pasadena
hospital”
causing
humiliation. (Id. at 18).
C.
Caldwell’s Legal Action
On October 30, 2014, Caldwell initiated this action
against Suzanne Klinker, Susan Cutchall, Sharon Hayes, and
John Timberlake. (Doc. # 1).
5
In the initial Complaint,
Caldwell
elaborated
that
Klinker
is
the
Medical
Center
Director of the Bay Pines VA Healthcare System, Cutchall is a
physician at Bay Pines, Hayes is the Executive Officer of
Palms
of
Pasadena
Hospital,
and
Timberlake
is
the
“GM
Operations Manager” for Bright House Field. (Id. at 2-3).
Caldwell maintained that the two VA employees, Klinker
and Cutchall, “exhibited gross incompetence, malpractice, and
complete disregard for Plaintiff’s life, health and welfare,
mental
state
and
safety.”
(Id.
at
3).
Caldwell
further
contended that “VA/Bay Pines medical center was negligent in
terms of providing quality care to the plaintiff,” and that
Cutchall engaged in medical malpractice when she determined
that “plaintiff was not eligible for a power wheelchair.” (Id.
at 3, 7).
In addition, Caldwell generally complained that he was
inconvenienced when the pharmacist at Palms of Pasadena failed
to promptly fill medications and that he was discharged in a
Palms of Pasadena wheelchair, rather than his desired power
wheelchair. (Id. at 10).
Caldwell also sued Timberlake, a manager for Bright House
Field, claiming: “the fact that the staff had denied the
plaintiff[‘s] request to be seated in the handicap section,
Bright House Field assumes some responsibility.” (Doc. # 1 at
6
10).
On October 31, 2014, the Court sua sponte dismissed the
initial Complaint without prejudice after finding that it
lacked subject matter jurisdiction over the case. (Doc. # 5).
To that end, the Court elaborated that: “Caldwell does not
specifically reference a constitutional amendment or federal
statute, and a mere reference to federal law is not enough to
establish federal question jurisdiction.” (Id. at 3).
The
Court
for
also
carefully
explained
the
requirements
establishing complete diversity of citizenship (28 U.S.C. §
1332) and determined that Caldwell “failed to definitively
establish diversity jurisdiction.” (Id. at 4). In the initial
Complaint,
Petersburg,
Caldwell
Florida
indicated
and
that
provided
he
a
resides
Florida
in
St.
address
for
Klinker, Cutchall, Hayes, and Timberlake. (Doc. # 1 at 1).
On
November
10,
2014,
Caldwell
filed
his
Amended
Complaint once again naming Klinker, Cutchall, Hayes, and
Timberlake as Defendants. (Doc. # 7).
The allegations of the
Amended Complaint mirrored those contained in the original
Complaint,
and
Caldwell
failed
to
supplement
his
jurisdictional allegations.
On December 4, 2014, Hayes, a Palms of Pasadena employee,
filed a Motion to Dismiss pursuant to Federal Rule of Civil
7
Procedure 12(b)(6), 12(b)(1), 9(c), 10(a), 10(b), and 8(a).
(Doc. # 12).
Among other contentions, Hayes argued that the
Amended Complaint failed to “identify or otherwise describe
any act or omission committed by Susan Hayes, let alone any
act or omission that caused or contributed to Plaintiff’s
alleged damages or would support a cause of action against Ms.
Hayes.” (Id. at 2).
The Court granted the Motion to Dismiss
on December 23, 2014, and authorized Caldwell to file a Second
Amended Complaint. (Doc. # 13).
On January 5, 2015, Caldwell filed his Second Amended
Complaint naming the following Defendants: U.S. Department of
Veterans
Affairs,
U.S.
Department
of
Health
and
Human
Services, and Hospital Corporation of America, Inc. (Doc. #
18).
The
Second
Amended
Complaint
generally
described
Caldwell’s dissatisfaction with the medical care he received
at Bay Pines and also indicated that Bay Pines should have
admitted him when he was Baker Acted at Palms of Pasadena.
Consistent
with
his
prior
submissions,
Caldwell
maintained that Palms of Pasadena (which is apparently owned
by Hospital Corporation of America) failed to timely fill his
prescribed
medications
discharged
Caldwell
in
upon
a
his
hospital
wheelchair
Pasadena. (Id.).
8
owned
admission
by
Palms
and
of
On January 9, 2015, the United States filed a Motion to
Dismiss on behalf of the VA and the Department of Health and
Human Services. (Doc. # 22).
The Government contended that
the Second Amended Complaint was subject to dismissal with
prejudice because, as to Caldwell’s tort claims against the
United States, Caldwell failed to name the United States as a
Defendant and failed to exhaust administrative remedies. On
January 27, 2015, the Court granted the Government’s Motion to
Dismiss,
but
specified
that
the
dismissal
was
without
prejudice and with leave to file a Third Amended Complaint by
February 16, 2015. (Doc. # 31).
In granting the Motion to
Dismiss, the Court specified:
A plaintiff bringing a claim against the United
States under the FTCA must first present the claim
to the appropriate federal agency and wait for the
agency to finally deny it. An agency’s failure to
dispose of a claim within six months is deemed to
be a final denial.
A district court only has
jurisdiction over an FTCA action if the plaintiff
has met section 2675(a)’s requirements.
(Id. at 6-7). The Court further iterated: “As Caldwell has
alleged negligence and malpractice claims against departments
of the United States, his failure to set forth his pursuit of
administrative remedies, at present, is fatal to his case.”
(Id. at 7).
Caldwell did not file a Third Amended Complaint by
9
February 16, 2015.
Rather, on February 17, 2015, Caldwell
filed a scathing “response” to the Court’s January 27, 2015,
Order. (Doc. # 32).
The Court gives Caldwell the benefit of
the doubt and will construe his “response” as the CourtAuthorized Third Amended Complaint.
Therein, Caldwell names
the VA, the Department of Health and Human Services, and
Hospital Corporation of America as the Defendants. (Id.). The
construed Third Amended Complaint is not divided into counts,
which makes the Court’s task in ascertaining the nature of
Caldwell’s claims a challenge.
Instead of organizing his
claims
Caldwell
in
numbered
paragraphs,
has
submitted
a
rambling 20-page narrative in which Caldwell demands $35
million in damages.
The Government seeks dismissal of the Third Amended
Complaint pursuant to Rule 12(b)(1) and 12(b)(6). (Doc. # 33).
Caldwell has responded to the Motion. (Doc. # 35).
The Court
grants the Motion as explained below.
II.
Legal Standard
A.
Rule 12(b)(1)
Federal
courts
are
courts
of
limited
jurisdiction.
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
10
should
itself
raise
the
question
of
subject
matter
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
Motions
to
dismiss
for
lack
of
subject
matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.
Morrison v. Amway Corp.,
323
Cir.
F.3d
920,
924
n.5
(11th
2003).
When
the
jurisdictional attack is factual, the Court may look outside
the four corners of the complaint to determine if jurisdiction
exists.
Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732
(11th Cir. 1982).
In a factual attack, the presumption of
truthfulness afforded to a plaintiff under Fed. R. Civ. P.
12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957,
960 (11th Cir. 1999)(citing Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). Because the very power of the Court to
hear the case is at issue in a Rule 12(b)(1) motion, the Court
is free to weigh evidence outside the complaint.
Eaton, 692
F.2d at 732.
B.
Rule 12(b)(6)
On a Rule 12(b)(6), Fed. R. Civ. P., motion to dismiss,
this
Court
accepts
as
true
all
the
allegations
in
the
complaint and construes them in the light most favorable to
11
the plaintiff.
Jackson v. Bellsouth Telecomms., 372 F.3d
1250, 1262 (11th Cir. 2004).
Further, this Court favors the
plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep’t of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss,
the
facts
stated
in
[the]
complaint
and
inferences therefrom are taken as true.”).
all
reasonable
However, the
Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
In addition, courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
III. Analysis
A.
FTCA Claims against Government Defendants
1.
United States is the Proper Defendant
12
In Levin v. United States, 133 S. Ct. 1224, 1228 (2013),
the Court explained that the FTCA “gives federal district
courts exclusive jurisdiction over claims against the United
States for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of
federal
employees
employment.”
Id.
acting
within
the
scope
of
their
“Substantively, the FTCA makes the United
States liable to the same extent as a private individual under
like circumstances, under the law of the place where the tort
occurred, subject to enumerated exceptions.” Id.
Thus, under
28 U.S.C. § 2670(b), the exclusive remedy for a state law tort
claim against a federal employee acting within the scope of
his or her employment is an action against the United States
under the Federal Tort Claims Act. 28 U.S.C. §§ 1346, 2672.
Neither the federal employee nor the federal agency is a
proper defendant in a FTCA case. See Daniel v. United States
Marshal Serv., 188 F. App’x 954, 956 (11th Cir. 2006)(“[T]he
United States [is] the only proper defendant, pursuant to the
FTCA.”); Northwood v. United States, No. 1:13-cv-1196, 2015
U.S. Dist. LEXIS 39182, at *4-5 (N.D. Ala. Mar. 27, 2015) (“It
is
beyond
dispute
that
the
United
States,
and
not
the
responsible agency or employee, is the proper party defendant
in a Federal Tort Claims Act suit.”).
13
Here, Caldwell’s failure to name the proper Defendant
(the United States) after specific instruction on this matter
warrants dismissal of his FTCA claims.
rather
than
various
agencies
(such
The United States,
as
the
VA
and
the
Department of Health and Human Services) is the only proper
defendant for tort actions by United States government actors
in this case. (Doc. # 31 at 6).
“Although courts liberally
construe pro se pleadings, a pro se litigant is required to
conform to procedural rules, and a district judge is not
required to rewrite a deficient pleading.” McFarlin v. Douglas
Cnty., 587 F. App’x 593, 595 (11th Cir. 2014).
2.
Administrative Exhaustion Requirement
Even if the Court were to substitute the United States as
the
appropriate
Defendant
in
place
of
the
VA
and
the
Department of Health and Human Services, Caldwell’s tort
claims against the United States are nevertheless subject to
dismissal because Caldwell has not alleged that he exhausted
required administrative remedies prior to initiating this
action.
In Slater v. United States, 175 F. App’x 300, 306 (11th
Cir. 2006), the court explained that: “The FTCA establishes
that as a prerequisite to maintaining a suit against the
United States, a plaintiff must present notice of the claim to
14
the appropriate federal agency.” A FTCA claimant satisfies
this requirement when he or she “(1) gives the agency written
notice of his or her claim sufficient to enable the agency to
investigate and (2) places a value on his or her claim.”
Brown v. United States, 838 F.2d 1157, 1159 (11th Cir. 1988).
The
FTCA
specifies
that
a
claimant
must
exhaust
these
administrative remedies within two years after the claim
accrues. Slater, 175 F. App’x at 304.
In medical malpractice
cases, such claims “accrue when the plaintiff knows of both
the injury and its cause.” Id.
“Thus, a medical malpractice
claim under the FTCA accrues when the plaintiff is, or in the
exercise of reasonable diligence should be, aware of both his
injury and its connection with some act of the defendant.” Id.
Recently, the Supreme Court indicated that equitable
tolling may apply with respect to these deadlines, and that a
district court is not automatically deprived of jurisdiction
when a FTCA action is untimely filed. United States v. Wong,
No. 13-1074, 2015 U.S. LEXIS 2809, at *17 (Apr. 22, 2015)(“The
time limits in the FTCA are just time limits, nothing more.
Even though they govern litigation against the Government, a
court can toll them on equitable grounds.”).
3.
Caldwell’s Claims Sound in Tort
In Caldwell’s Response in Opposition to the pending
15
Motion to Dismiss, Caldwell appears to argue that his claims
against the Government entities are not tort claims and are
not malpractice claims, and, thus, he was not required to
exhaust
administrative
remedies.
Specifically,
Caldwell
submits:
The defendants’ counsel appears to have misread the
plaintiff’s complaint and or conveniently choose to
cheery-pick the wording of the complaint to
construe that the plaintiff had filed a ‘tort
action’ complaint against the defendants. In the
lawsuit the plaintiff states on multiple occasions
that the lawsuit was an action against multiple
defendants
for
their
actions,
incompetence,
corruption, lack of accountability and lack of
ability to accept responsibility for the egregious
incompetence assocaite[d] with the broken spine the
plaintiff sustained in February 2014 and again in
August 2014.
(Doc. # 35 at 9).
While Caldwell disclaims that he has filed a “tort”
action against the United States, each Complaint that he has
filed in this Court, including the operative complaint (the
construed Third Amended Complaint) repeatedly alleges that VA
physicians and personnel committed medical malpractice or
otherwise
failed
to
render
appropriate
medical
care
to
Caldwell.
For instance, in his initial Complaint, filed on October
28, 2014, Caldwell alleged that he received “substandard
medical
care”
and
was
the
victim
16
of
“incompetence
and
malpractice.” (Doc. # 1 at 3).
He specifically alleged that
Cutchall, a VA physician, committed “malpractice” because “a
competent medical professional would have ordered: treatment
by a VA/Bay Pines Neurologist or ordered an evaluation to
determine
the
feasibility
of
a
power
wheelchair
and/or
contacted outside doctors.” (Id. at 4). He also alleged that
“The VA/Bay Pines medical center was negligent in terms of
providing quality medical care to plaintiff.” (Id. at 5).
He
remarked that a physician at Palms of Pasadena diagnosed his
condition as “Shy Dragger Syndrome” and asserted that “the
physicians at VA/Bay Pines may have arrived at the same
diagnoses
had
Susan
Cutchall
not
tripped
over
her
own
incompetence and malpractice when she determined that the
plaintiff was not eligible for a power wheelchair.” (Id. at
7).
Caldwell’s
subsequent
Amended
Complaint,
filed
on
November 10, 2014, contained the same claims regarding medical
malpractice as the original Complaint and also reflected his
contention
that
VA
personnel
(specifically
Klinker
and
Catchall) “exhibited gross incompetence, malpractice, and
complete
disregard
for
the
plaintiff’s
welfare,
mental
state
and
safety.”
life,
(Doc.
#
health
7
at
and
4).
Caldwell’s Second Amended Complaint (Doc. # 18), filed on
17
January 5, 2015, and construed Third Amended Complaint (Doc.
# 32), filed on February 17, 2015, also claim that Caldwell
was the victim of medical malpractice at the VA. (Doc. # 32 at
8, 10, 16).
For example, Caldwell indicates in the Third
Amended Complaint: “The plaintiff has not concluded that VA
Bay
Pines
healthcare
caused
the
SDS
diagnosis.
The
plaintiff’s claim is that staff at VA Bay Pines healthcare
failed to initiate proper medical assessments to a medical
condition that required a measure of medical expertise.” (Id.
at 15).
Because Caldwell seeks to sue the Government for medical
malpractice,
he
was
required
remedies prior to filing suit.
to
exhaust
administrative
However, Caldwell has not
alleged that he satisfied the requirement of presenting an
administrative claim for a sum certain to the proper agency
before filing this lawsuit.
To the extent Caldwell may claim that he satisfied the
FTCA’s administrative requirements by submitting a memorandum
to Sharon Hayes, his contention is not well taken.
Caldwell
submits the following discussion in response to the Court’s
prior
order
explaining
the
administrative
exhaustion
requirements of the FTCA:
One of the most ridiculous statements in the Order:
18
“. . . As Caldwell has alleged negligence and
malpractice claims against departments of the
United States, his failure to set forth his pursuit
of administrative remedies, at present, is fatal to
his case.” . . . . The plaintiff had presented his
issues/concerns to DEFENDANT SHARON HAYES on
September 12, 2014. In that document the plaintiff
had asserted that Hayes was lining up Palms of
Pasadena hospital for a lawsuit.
The plaintiff
made this fact clear in the complaint. What the
hell administrative remedies were available other
than a memorandum addressed to Hayes?
Was the
plaintiff supposed to bring in a 45mm and light the
place up, as an “administrative remedy”? An
“administrative remedy” was plaintiff’s FIRST
course of action, but defendant Hayes was too busy
hold up in her office sucking on M&Ms and sipping
coke to do her damn job.
(Doc. # 32 at 5)(emphasis in original).
Hayes, an employee of Palms of Pasadena Hospital, is not
a
Government
document
to
employee,
her
and
does
Caldwell’s
not
requirements of the FTCA.
satisfy
presentation
the
of
a
administrative
Caldwell also indicates in his
Third Amended Complaint that he “prepared a two page memo” and
“hand-carried
[it]
to
the
hospital
administrator
office
Suzanne Klinker, which was signed for receipt by her deputy
administrator.
Palms of Pasadena hospital did not bother to
respond to the memo.
The administrator treated the issues as
though they were standing operating procedure at Palms.” (Id.
at
18).
Although
Klinker
is
a
VA
employee,
Caldwell’s
submission of a letter to her describing his complaints about
19
Palms of Pasadena Hospital does not satisfy the requirements
of the FTCA.
The Court accordingly dismisses Caldwell’s tort claims
which may be presented against the Governmental entities in
the Third Amended Complaint because Caldwell failed to exhaust
administrative remedies as required under the FTCA.
The FTCA
provides that “an action shall not be instituted upon a claim
against
the
United
States
for
money
damages
unless
the
claimant has first exhausted his administrative remedies.”
McNeil v. United States, 508 U.S. 106, 107 (1993).
To the
extent Caldwell asserts that his injury accrued in 2014, the
Court notes that there is still time for Caldwell to comply
with
the
FTCA’s
administrative
requirements,
and,
if
he
intends to do so, he may file a subsequent action after
exhausting his administrative remedies.
The Court recognizes that Caldwell may experience some
burden
in
seeking
out
administrative
remedies,
and
then
(assuming that no remedy is provided) refiling his case in
this Court. However, the Supreme Court has held that “strict
adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration
of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980). And, while Caldwell is a pro se litigant, rather than
20
an attorney, the application of the law remains the same, and
Caldwell is still provided with an opportunity to pursue these
avenues in adherence with the FTCA.
B.
Constitutional Claims against Government Defendants
The Third Amended Complaint also appears to allege that
the Governmental Defendants violated the Due Process clause of
the Fifth and Fourteenth Amendments to the United States
Constitution. (Doc. # 32 at 19). The Third Amended Complaint
does
not
contain
any
allegations
Constitutional violation.
which
could
support
a
However, even if Caldwell had
supported his Constitutional claims with factual allegations,
they would be subject to dismissal based on the doctrine of
sovereign immunity.
See McLaughlin v. United States, No.
5:12-cv-375, 2014 U.S. Dist. LEXIS 34310, at *4 (M.D. Fla.
March 17, 2014)(the United States “has not waived sovereign
immunity from liability for an award of damages arising from
an alleged violation of the Constitution.”)(citing FDIC v.
Meyer, 510 U.S. 471, 485-86 (1994)).
Furthermore, even if Caldwell could plead a waiver of
sovereign immunity, he must do more than assert general
allegations
of
medical
negligence
to
establish
a
constitutional violation. Id. (“[c]onduct that results from
accidental
inadequacy,
that
21
arises
from
negligence
in
diagnosis
or
treatment,
or
that
constitutes
medical
malpractice under state law” does not rise to the level of a
constitutional violation.). Upon due consideration, the Court
dismisses
Caldwell’s
claims
against
the
Governmental
Defendants which may be predicated upon a violation of the
United States Constitution.
C.
Hospital Corporation of America
Having dismissed the claims against the United States
Governmental Defendants, the Court determines that it is
appropriate to decline to exercise supplemental jurisdiction
over any state law claims that Caldwell’s Third Amended
Complaint may attempt to array against Palms of Pasadena’s
parent corporation, Hospital Corporation of America.
U.S.C.
§
1367(c)(3)(“The
district
courts
may
See 28
decline
to
exercise supplemental jurisdiction over a claim . . . if the
district court has dismissed all claims over which it has
original jurisdiction.”); see also Arnold v. Tuskegee Univ.,
212 F. App’x 803, 811 (11th Cir. 2006)(“When the district
court has dismissed all federal claims from a case, there is
a strong argument for declining to exercise supplemental
jurisdiction over the remaining state law claims.”).
Although Caldwell suggests that the Court has diversity
jurisdiction over his claims against Hospital Corporation of
22
America (Doc. # 32 at 3), he has not provided the Court with
the information necessary for making a determination regarding
complete diversity of citizenship.
In
the
Caldwell’s
Court’s
initial
Complaint
Order
without
sua
sponte
prejudice
for
dismissing
lack
of
jurisdiction, filed on October 31, 2014, the Court explained:
In order to demonstrate complete diversity,
Caldwell must establish that his citizenship is
diverse from the citizenship of every Defendant.
As explained in Molinos Valle Del Cibao, C. por A.
v. Lama, 633 F.3d 1330, 1342 n.12 (11th Cir. 2011),
“citizenship, not residence, is the key fact that
must be alleged . . . to establish diversity for a
natural person.”
(Doc. # 5 at 4).
Caldwell subsequently filed an Amended
Complaint that, again, omitted information concerning the
parties’ citizenship. (Doc. # 7).
On December 23, 2014, the
Court entered an Order dismissing the Amended Complaint for
lack
of
subject
requirements
for
matter
jurisdiction
establishing
and
reiterating
the
diversity
of
complete
citizenship. (Doc. # 13).
Despite the Court’s repeated instruction, Caldwell has
provided a St. Petersburg, Florida address or has otherwise
maintained that he is a resident of St. Petersburg, Florida
throughout
this
litigation.
This
Court
cannot
force
Caldwell’s hand to include information about his citizenship
23
in his various versions of the Complaint.
In addition, although Caldwell provides the Court with a
Nashville, Tennessee mailing address for Hospital Corporation
of America, he has not provided information about Hospital
Corporation of America’s citizenship.
A corporation is a
citizen of (1) its state of incorporation; and (2) the state
where it has its principal place of business. 28 U.S.C. §
1332(c)(1). While Caldwell’s demand for a multimillion dollar
judgment
facially
satisfies
the
amount
in
controversy
requirement for complete diversity of citizenship, without
information concerning Hospital Corporation of America’s state
of incorporation and principal place of business, the Court
determines that the requirements of complete diversity of
citizenship are not met.
In addition, the Court notes that, even if it were to
exercise jurisdiction over Caldwell’s state law claims against
Hospital Corporation of America, those claims, as currently
presented, would be subject to dismissal. As previously noted
in this Order (as well as in prior Court Orders), Caldwell
fails to delineate specific counts or claims against Hospital
Corporation of America (or any other Defendant for that
matter). The Court has carefully reviewed the construed Third
Amended Complaint and all preceding versions of the Complaint
24
and none contain factual allegations supporting a viable claim
against Hospital Corporation of America.
Generally, Caldwell indicates that he was admitted to
Palms of Pasadena for rehabilitation after he had surgery at
another
hospital.
Apparently,
some
of
his
prescription
medications were not promptly filled at Palms of Pasadena.
Caldwell does not allege that he suffered any harm or damage
due to this delay.
In addition, he remarks that he was
embarrassed because he was discharged in a Palms of Pasadena
wheelchair such that he had to “entertain questions in regards
to whether or not he had stolen the wheelchair from Palms of
Pasadena hospital.” (Doc. # 32 at 18).
Even assuming that each and every factual allegation
concerning Palms of Pasadena (and, by extension, Hospital
Corporation
of
America)
is
correct
in
every
respect,
Caldwell’s allegations amount to petty grievances and provide
an account of minor inconveniences that Caldwell countenanced
during his time as a Palms of Pasadena patient. And, although
Caldwell
generally
provided
any
against
Palms
references
allegations
of
to
Pasadena
Corporation of America.
“malpractice,”
he
support
a
or,
extension,
by
has
malpractice
not
claim
Hospital
Caldwell is advised that, “Under
Florida law, to prevail in a medical malpractice case a
25
plaintiff must establish the following: the standard of care
owed by the defendant, the defendant’s breach of the standard
of care, and that said breach proximately caused the damages
claimed.” Woods v. United States, 200 F. App’x 848, 864 (11th
Cir. 2006). Caldwell’s Third Amended Complaint does not touch
upon these elements.
Rather than dismissing Caldwell’s state law claims on the
merits,
the
Court
declines
to
exercise
supplemental
jurisdiction over these claims and dismisses these claims
without prejudice.
IV.
Conclusion
Even though complaints by pro se plaintiffs are liberally
construed,
“a
pro
se
litigant
is
not
relieved
of
his
obligation to allege sufficient facts to support a cognizable
legal
claim
and
the
court
may
not
rewrite
a
deficient
pleading.” Osahar v. United States Postal Serv., 297 F. App’x
863, 864 (11th Cir. 2008); Muhammad v. Bethel, 430 F. App’x
750, 752 (11th Cir. 2011)(“a court may not serve as de facto
counsel for a party or rewrite an otherwise deficient pleading
in order to sustain an action.”).
Caldwell has availed himself of four opportunities to
state a claim against Defendants in this action, and despite
these multiple opportunities, he has not presented a viable
26
complaint to the Court.
Although Caldwell attempts to array
various claims against a multitude of Defendants, it is this
Court’s observation that the heart of the matter is his
contention that the VA failed to provide quality care to
address his medical needs, leading to his serious neck injury.
The
Court
has
dismissed
Caldwell’s
FTCA
claim
without
prejudice and has provided specific instruction to Caldwell
regarding the technical requirements and conditions precedent
to bringing a future FTCA action.
Although the dismissal of the present action is without
prejudice, the Court declines to authorize further amendment
of
the
pleadings
determined
that
in
this
action
Caldwell
because
must
the
exhaust
Court
the
has
FTCA’s
administrative remedies prior to initiating a FTCA action. In
light
of
remedies,
Caldwell’s
and
failure
failure
to
to
cure
exhaust
administrative
deficiencies
previously
identified, the Court finds that any further amendment of the
Complaint at this juncture would be futile.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The
Government’s
Motion
to
Dismiss
Complaint (Doc. # 33) is GRANTED.
(2)
The Clerk is directed to close the case.
27
Third
Amended
DONE and ORDERED in Tampa, Florida, this 15th day of May
2015.
Copies to: All Counsel and Parties of Record
28
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