Whigham v. Stewart

Filing 10

ORDER: The Motion to Dismiss Defendant Stewart-Borders with Prejudice and Substitute the United States of America (Doc. 3 ) and Motion to Dismiss Plaintiff's Claims or in the Alternative for Summary Judgment filed by the United States of America (Doc. 8 ) are GRANTED. Plaintiff's Complaint is DISMISSED without prejudice for failure to exhaust administrative remedies. The Clerk is DIRECTED to close this case. Signed by Judge Staci M. Yandle on 10/4/2019. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANITA J. WHIGHAM,
Plaintiff,
vs.
JOYCE STEWART,
Defendant.

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Case No. 19-CV-690-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:

Plaintiff Anita Whigham filed a pro se Federal Tort Claims Act (“FTCA”) Complaint
against the United State of America alleging that Joyce Stewart-Borders, a certified nurse
practitioner employed at Southern Illinois Healthcare Foundation ("SIHF"), was negligent in
wrongfully diagnosing Plaintiff with herpes (Doc. 1-1). Now before the Court are the Motion to
Dismiss Defendant Stewart-Borders with Prejudice and Substitute the United States of America
(Doc. 3) and Motion to Dismiss Plaintiff's Claims or in the Alternative for Summary Judgment
filed by the United States of America (Doc. 8). For the following reasons, the motions are
GRANTED.
Motion to Dismiss Defendant Stewart-Borders
Under 42 U.S.C. § 233(a), an FTCA lawsuit against the United States is the sole remedy
"for damage or personal injury, including death, resulting from the performance of medical,
surgical, dental, or related functions ... by any commissioned officer or employee of the Public
Health Service while acting within the scope of his office or employment." In such cases, the
Attorney General may certify that the employee "was acting in the scope of his employment at

the time of the incident out of which the suit arose." 42 U.S.C. § 233(c). Upon certification, the
employee is dismissed from the action, the United States is substituted as defendant in place of
the employee, and the action is governed by the FTCA. Id. The Attorney General has delegated
authority to certify a federal employee's scope of employment to the U.S. Attorneys. 28 C.F.R. §
15.4(a).
Here, the U.S. Attorney for the Southern District of Illinois has delegated his authority
under § 15.4(a) to the Chief of the Civil Division, who has certified that Defendant StewartBorders is currently and was at all relevant times an employee of Southern Illinois Healthcare
Foundation – a federal entity of the United States of America (Doc. 1-4). Accordingly, the
exclusive remedy available to Plaintiff is an FTCA lawsuit against the United States. Finding
that the FTCA applies here, and having no response from Plaintiff, the Motion to Dismiss
Defendant Joyce Stewart-Borders with prejudice (Doc. 3) is granted and the United States of
America is hereby substituted as a defendant.
Motion to Dismiss Plaintiff's Complaint
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to “test the
sufficiency of the complaint, not to decide the merits” of the case. Gibson v. City of Chi., 910
F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). The FTCA requires plaintiffs to exhaust their
claims at the administrative level before filing suit. A claim is exhausted at the administrative
level when the "pertinent facts" of the claim have been pled, giving the administrative agency
"sufficient notice" to investigate the claim, and the agency either denies the claim in writing or
fails to make a final disposition within six months after its filing. 28 U.S.C. § 2675(a); Palay v.
United States, 349 F.3d 418, 425 (7th Cir. 2003). A plaintiff's failure to exhaust administrative
remedies before she brings suit mandates dismissal of the claim. McNeil v. United States, 508

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U.S. 106, 113 (1993). When ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) for
failure to exhaust, the Court may examine administrative documents and take judicial notice of
matters in the public record. See Palay, 349 F.3d 418, 425 n. 5 (7th Cir. 2003).
In the instant case, administrative records establish that the United States Department of
Health and Human Services has not received any administrative claims from Plaintiff regarding
the allegations in her Complaint (see Doc. 8-2). In addition, Plaintiff’s response to the motion to
dismiss was due by August 26, 2019 and no response has been filed. The Court may, in its
discretion, construe a party's failure to file a timely response as an admission of the merits of the
motion, and the Court will do so in this case. See Local Rule 7.1(c) (requiring a response to a
motion to dismiss be filed 30 days after service of the motion and stating a failure to timely
respond may be deemed an admission of the merits of the motion); see also Tobel v. City of
Hammond, 94 F.3d 360, 362 (7th Cir.1996) ("[T]he district court clearly has authority to enforce
strictly its Local Rules, even if a default results."). Accordingly, Defendant's Motion is granted
and Plaintiff's Complaint is DISMISSED without prejudice for failure to exhaust
administrative remedies.
IT IS SO ORDERED.
DATED: October 4, 2019

STACI M. YANDLE
United States District Judge

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