Hensley v. Oakley

Filing 24

ORDER GRANTING DEFENDANT DR. JEREMY OAKLEY'S MOTION TO DISMISS PLAINTIFF'S STATEMENT OF CLAIM AND NOTICE (ECF NO. 8 ). Signed by JUDGE HELEN GILLMOR on 12/16/2014. ~ DEFENDANT DR. JEREMY OAKLEY'S MOTION TO DISMISS PL AINTIFF'S STATEMENT OF CLAIM AND NOTICE (ECF No. 8) is GRANTED WITHOUT PREJUDICE. Judgment shall enter upon the Assistant United States Attorney filing the notice as instructed in Section C, entitled "Further Action Required by the Un ited States." (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Dianne Estelle Hensley,
Plaintiff,
vs.
United States of America,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Civ. No. 14-00472 HG-RLP

ORDER GRANTING DEFENDANT DR. JEREMY OAKLEY’S MOTION TO DISMISS
PLAINTIFF’S STATEMENT OF CLAIM AND NOTICE (ECF NO. 8)

Plaintiff Dianne Estelle Hensley filed a Claim and Notice in
Hawaii state court alleging that she received improper dental
care from Dr. Jeremy Oakley.

Plaintiff’s Claim named Jeremy

Oakley as the Defendant.
The United States removed the Claim to federal district
court and filed a notice of substitution as Defendant in place of
Jeremy Oakley.

The United States, on Oakley’s behalf, filed a

motion to dismiss for lack of subject matter jurisdiction
pursuant to the Federal Tort Claims Act.
Defendant Dr. Jeremy Oakley’s Motion to Dismiss Plaintiff’s
Statement of Claim and Notice (ECF No. 8) is GRANTED WITHOUT
PREJUDICE.
PROCEDURAL HISTORY
On July 16, 2014, Plaintiff Dianne Estelle Hensley filed a
1

Statement of Claim and Notice in the Small Claims Division of the
District Court of the Third Circuit, Puna Division, State of
Hawaii.

(Claim and Notice, attached as Ex. A. to Defendant’s

Notice of Removal, ECF No. 1-1).
On October 16, 2014, Defendant Jeremy Oakley, by and through
the United States of America, removed the state court action to
the United States District Court for the District of Hawaii.
(ECF No. 1).
On October 24, 2014, Defendant Oakley, by and through the
United States, filed DEFENDANT DR. JEREMY OAKLEY’S MOTION TO
DISMISS PLAINTIFF’S STATEMENT OF CLAIM AND NOTICE.

(ECF No. 8).

On November 13, 2014, Plaintiff submitted via e-mail,
OPPOSITION TO DISMISS: HENSLEY VS OAKLEY.
Plaintiff also submitted a six-page fax.

(ECF No. 17).
(Attached as Ex. A to

Letter at ECF No. 17).
On the same date, Plaintiff submitted via email, REQUEST FOR
PHONE HEARING WED, DEC. 10, 10:30.

(ECF No. 18).

Also on November 13, 2014, the Court issued a Minute Order
and construed Plaintiff’s e-mailed letter and fax (ECF No. 17) as
her Opposition to Defendant’s Motion to Dismiss.

(ECF No. 19).

Plaintiff’s Request to appear at the hearing by telephone (ECF
No. 18) was granted.

(ECF No. 19).

On November 11, 2014, the United States filed NOTICE OF
SUBSTITUTION OF UNITED STATES AS DEFENDANT.

2

(ECF No. 20).

On November 24, 2014, the United States filed REPLY
MEMORANDUM IN SUPPORT OF DEFENDANT DR. JEREMY OAKLEY’S MOTION TO
DISMISS PLAINTIFF’S STATEMENT OF CLAIM AND NOTICE.

(ECF No. 22).

The United States also submitted an Exhibit in support of its
Motion to Dismiss.

(ECF No. 21).

On December 10, 2014, a hearing was held on DEFENDANT DR.
JEREMY OAKLEY’S MOTION TO DISMISS PLAINTIFF’S STATEMENT OF CLAIM
AND NOTICE (ECF No. 8).
BACKGROUND

Plaintiff Dianne Estelle Hensley claims that on August 2,
2012, she went to the Keaau Family Health Center on the Island of
Hawaii to receive dental treatment.

(Statement of Claim and

Notice at p. 1, Attached as Ex. A to the Def.’s Notice of
Removal, ECF No. 1-1).
Dr. Jeremy Oakley was an employee of The Bay Clinic, Inc.,
which operated the Keaau Family Health Center.

(Id. at p. 1).

Plaintiff claims that on August 2, 2012, she consulted with Dr.
Oakley and asked him to repair her tooth without removing it.
(Id.; Pla.’s Ex. A, ECF No. 17-1).

Plaintiff alleges that Dr.

Oakley unnecessarily extracted her tooth and gave her a mouth
plate that she did not want.

(Id.)

On July 16, 2014, Plaintiff, proceeding pro se, filed a
Claim and Notice in Hawaii state small claims court against Dr.
Oakley.

(Claim and Notice at p. 1, ECF No. 1-1).
3

The United States removed the case to federal district court
on October 16, 2014, and substituted itself as the Defendant in
place of Dr. Oakley.

(Notice of Removal, ECF No. 1).

The United States removed the case on the basis that
Plaintiff’s claim was filed against a federal employee.

(Id.)

The United States asserts that in August 2012, Dr. Oakley was a
federal employee acting within the scope of his duties when he
extracted the Plaintiff’s tooth. (Department of Health and Human
Services Notice of Deeming Action, attached as Ex. A to Def.’s
Reply, ECF No. 21-1).
The Government seeks to dismiss Plaintiff’s case because the
Federal Tort Claims Act bars claimants from seeking damages
against the United States in federal court until they have
exhausted their administrative remedies.

The United States

alleges Plaintiff has not exhausted her administrative remedies
with the Department of Health and Human Services for the alleged
improper dental care she received from Dr. Oakley.
STANDARD OF REVIEW
The district courts of the United States are courts of
limited jurisdiction.

Exxon Mobil Corp. v. Allapattah Servs.,

545 U.S. 546, 552 (2005).

Federal district courts have no

jurisdiction without specific constitutional or statutory
authorization.

Id.

Pursuant to Federal Rule of Civil Procedure

12(b)(1), a case must be dismissed for lack of subject matter

4

jurisdiction when the Court lacks a constitutional or statutory
basis to adjudicate the controversy.

Fed. R. Civ. P. 12(b)(1);

Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975
(9th Cir. 2012).
A challenge to the Court’s subject matter jurisdiction may
be “facial or factual.”

Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004).
In a factual attack, the party challenging jurisdiction
argues that the facts in the case, notwithstanding the
allegations in the Complaint, divest the Court of subject matter
jurisdiction.
2000).

See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

No presumptive truthfulness attaches to the Complaint’s

allegations.

Id.

The party challenging jurisdiction presents

“affidavits or other evidence properly brought before the court”
indicating that subject matter jurisdiction is lacking.

Savage

v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.
2003).

The burden then shifts to “the party opposing the motion

[to] furnish affidavits or other evidence to satisfy its burden
of establishing subject matter jurisdiction.”

Id.; Colwell v.

Dep’t of Health and Human Serv., 558 F.3d 1112, 1121 (9th Cir.
2009).

Failure to present suitable evidence establishing subject

matter jurisdiction necessitates dismissal.

Moore v. Maricopa

Cnty. Sheriff’s Office, 657 F.3d 890, 895 (9th Cir. 2011).
ANALYSIS

5

The United States, as a sovereign state, is immune from suit
unless it specifically consents.

United States v. Mitchell, 445

U.S. 535, 538 (1980); Reed v. U.S. Dep’t of Interior, 231 F.3d
501, 504 (9th Cir. 2000).

Any waiver of sovereign immunity must

be unequivocally expressed.
287 (1983).

Block v. North Dakota, 461 U.S. 273,

When a statute waives sovereign immunity, the Court

must strictly construe the statute in favor of the United States.
Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).

If

there has not been an express waiver of sovereign immunity, then
the Court lacks subject matter jurisdiction over the case and it
must be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(1).

Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.

2004)
The Federal Tort Claims Act (“FTCA”) provides for a broad
waiver of the United States’ sovereign immunity.
Quamme, 492 F.3d 1016, 1019 (9th Cir. 2007).

Schoenfeld v.

The FTCA manifests

the United States’ consent to be sued “in the same manner and to
the same extent as a private individual under like
circumstances[.]”

28 U.S.C. § 2674.

The FTCA waives sovereign

immunity for the negligence of “any employee of the Government
while acting within the scope of his office or employment.”

28

U.S.C. § 1346(b)(1).
The Federally Supported Health Centers Assistance Act of
1992 (“FSHCAA”), Pub. L. No. 102-501, 106 Stat. 3268 (1992),

6

extends FTCA coverage to certain federally-funded healthcare
centers.

According to the FSHCAA, those healthcare centers

receiving federal funds to serve traditionally “underserved
populations” are deemed “employees” of the “Public Health
Service” for the purposes of FTCA liability.

42 U.S.C. § 233(g).

Any “damage for personal injury, including death, resulting from
the performance of medical, surgical, dental, or related
functions” by a covered healthcare center is subject to the
sovereign immunity waiver of the FTCA.
A.

42 U.S.C. §§ 233(a),(g).

The United States of America Was Properly Substituted
as the Defendant in Place of Dr. Jeremy Oakley

The United States claims it was properly substituted as the
Defendant in place of Dr. Oakley.
Claims of medical malpractice against federally-funded
health care facilities and their employees, acting in the scope
of their employment, must be pursued against the United States.
42 U.S.C. § 233; 28 U.S.C. § 2679(d)(1); see Quezada v. Bogle,
2007 WL 3335011, *2 (E.D. Cal. Nov. 8, 2007) (finding the United
States was properly substituted in place of a dentist who was
certified as acting within the scope of his duties at a
federally-funded healthcare center).
On January 1, 2012, the U.S. Department of Health and Human
Services (“DHHS”) deemed The Bay Clinic, Inc. and its employees
to be federal Public Health Service employees for the 2012
7

calendar year.

(Department of Health and Human Services Notice

of Deeming Action For Coverage Period 1/1/2012-12/31/2012,
attached as Ex. A to Def.’s Reply, ECF No. 21-1); see 42 U.S.C. §
233(g).
Plaintiff alleges that on August 2, 2012, she received
improper dental care from Dr. Oakley, while he was employed by
The Bay Clinic, Inc.

(Claim and Notice, attached as Ex. A to the

Def.’s Notice of Removal, ECF No. 1-1).
Almost two years later, on July 16, 2014, Plaintiff filed a
Statement of Claim and Notice in Hawaii state court against Dr.
Oakley.

(Id.)

42 U.S.C. § 233(c) provides that an action brought in state
court against a federal employee shall be removed to federal
district court upon a certification by the United States Attorney
General, or his designee, that the employee was acting within the
scope of his employment.

The statute provides that the United

States shall be substituted as the defendant upon such
certification.

42 U.S.C. § 233(c) states:

Upon a certification by the Attorney General that the
defendant was acting in the scope of his employment at
the time of the incident out of which the suit arose,
any such civil action or proceeding commenced in a
State court shall be removed . . . and the proceeding
deemed a tort action brought against the United States
under the provisions of Title 28 and all references
thereto.
42 U.S.C. § 233(c); see also 28 U.S.C. § 2679(d)(1)
(providing that the United States shall be substituted as the
8

party defendant to any civil action against a federal employee
who has been certified as acting within the scope of his
employment at the time of the incident).
On October 16, 2014, the United States removed the
Plaintiff’s Claim and Notice to federal court and substituted
itself as the Defendant.

(Notice of Removal, ECF No. 1; Notice

of Substitution, ECF No. 20).

The United States filed a

certification from the United States Attorney for the District of
Hawaii, Florence T. Nakakuni, in support of the removal.
(Certification of Florence T. Nakakuni at ¶ 3, ECF No. 1-2).

The

certification provided that “at all time relevant,” Dr. Oakley
was a federally deemed employee acting within the scope of his
employment by The Bay Clinic, Inc.

(Id.)

The United States was properly substituted as the Defendant
in place of Dr. Oakley pursuant to 42 U.S.C. § 233(c).
The FTCA applies to Plaintiff’s Claim as the United States
is the properly named Defendant in this action.

The FTCA is the

exclusive remedy for claims against the United States for
personal injuries arising from actions by employees of the
federal Public Health Service.

B.

42 U.S.C. § 233(a).

Plaintiff Did Not Exhaust the Administrative Remedies
Required by the Federal Tort Claims Act

The FTCA bars claimants from seeking damages against the
United States in court until they have exhausted their
9

administrative remedies.

28 U.S.C. § 2675(a); McNeil v. United

States, 508 U.S. 106, 113 (1993).

A plaintiff’s administrative

remedy is exhausted pursuant to the FTCA if:
(1)

the agency has denied the claim in writing; or,

(2)

the agency has failed to issue a final disposition of
the claim six months after it was filed.

28 U.S.C. § 2675(a)1; Jerves v. United States, 966 F.2d 517, 519
(9th Cir. 1992).
If no such claim is presented to the appropriate federal
agency within two years after the claim accrues, a tort claim
shall be forever barred.

28 U.S.C. § 2401(b).

The Ninth Circuit Court of Appeals has made clear that the
FTCA exhaustion requirement is jurisdictional and must be adhered
to strictly.

1

Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250

The FTCA in 28 U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against
the United States for money damages for injury . . .
caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the
scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified
or registered mail. The failure of an agency to make
final disposition of a claim within six months after it
is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for
purposes of this section . . . .
28 U.S.C. § 2675(a).
10

(9th Cir. 2006).
The United States argues that Plaintiff has failed to
exhaust her administrative remedies as to her tort claim brought
against Dr. Jeremy Oakley.

The United States has presented a

factual attack to subject-matter jurisdiction and has provided
evidence in support of its argument that jurisdiction is lacking.
Savage, 343 F.3d at 1039 n.2.
The United States submitted a declaration from Meredith
Torres, a Senior Attorney with the U.S. Department of Health and
Human Services.

(Declaration from Meredith Torres, attached to

Def.’s Reply, ECF No. 22-1).

Torres states in her Declaration

that on November 3, 2014, Plaintiff filed an administrative tort
claim with the Department of Health and Human Services relating
to The Bay Clinic, Inc., and Dr. Jeremy Oakley.

(Id. at ¶ 4).

According to Torres’ Declaration, Plaintiff filed her
administrative claim on November 3, 2014, more than three months
after she filed her Claim and Notice in Hawaii state court in
July 2014.

Torres asserts that no final disposition has been

made on the administrative tort claim that Plaintiff filed with
the Department of Health and Human Services on November 3, 2014.
(Id.)
Plaintiff has not met her burden to establish subject-matter
jurisdiction.

Colwell, 558 F.3d at 1121.

There is no evidence

that Plaintiff exhausted her administrative remedies with the

11

Department of Health and Human Services before filing her Claim
in state court as required by the FTCA.

Plaintiff states in her

Opposition that she “filed a tort claim with HHS in Washington
DC” but she has not established that the claim was exhausted.
(Pla.’s Opp. at p. 1, ECF No. 17).
The Court cannot exercise subject matter jurisdiction over
Plaintiff’s claim until she has exhausted her administrative
28 U.S.C. § 2675; Jerves, 966 F.2d 519.

remedies.

Plaintiff has

not provided evidence that the Department of Health and Human
Services has denied her administrative tort claim in writing.
Plaintiff is unable to demonstrate that the Department of Health
and Human Services failed to make a final disposition of her
claim within six months after it was filed, as Plaintiff only
filed her administrative tort claim on November 3, 2014.
Defendant’s Motion to Dismiss (ECF No. 8) is GRANTED WITHOUT
PREJUDICE.

C.

Further Action Required by the United States

At the hearing, Plaintiff Hensley stated that she has been
unable to complete the adjudication of her claim before the U.S.
Department of Health and Human Services because she has not
received her x-rays from The Bay Clinic, Inc.
The Defendant’s counsel shall contact The Bay Clinic, Inc.
and ensure that the Clinic provides Plaintiff Hensley with the x12

rays she has requested.
The Defendant’s counsel shall provide a written filing to
the Court once the Bay Clinic, Inc. provides Plaintiff Hensley
with her x-rays.
The Court will thereafter issue an order dismissing the
case.
CONCLUSION
DEFENDANT DR. JEREMY OAKLEY’S MOTION TO DISMISS PLAINTIFF’S
STATEMENT OF CLAIM AND NOTICE (ECF No. 8) is GRANTED WITHOUT
PREJUDICE.
Judgment shall enter upon the Assistant United States
Attorney filing the notice as instructed in Section C, entitled
“Further Action Required by the United States.”
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, December 16, 2014.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

Dianne Estelle Hensley v. United States of America; Civ. No. 1400472 HG-RLP; ORDER GRANTING DEFENDANT DR. JEREMY OAKLEY’S MOTION
TO DISMISS PLAINTIFF’S STATEMENT OF CLAIM AND NOTICE (ECF NO. 8)
13