Norman v. Dent Wargo et al

Filing 20

OPINION AND ORDER granting 11 Motion for Summary Judgment; denying as moot 19 Motion for Trial date. This case is DISMISSED without prejudice. Signed by Judge Rudy Lozano on 11/8/11. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LaSANDRA NORMAN,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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NO. 2:11-CV-097

OPINION & ORDER
This matter is before the Court on: (1) the Motion for Summary
Judgment, filed by Defendant on April 8, 2011 [DE #11], and (2) the
Motion seeking a trial date, filed by Plaintiff on August 15, 2011
[DE #19].

For the reasons set forth below, Defendant’s Motion for

Summary Judgment is GRANTED and Plaintiff’s motion for a trial date
is DENIED AS MOOT.

The Clerk is ORDERED to DISMISS this case

without prejudice.

BACKGROUND
On January 4, 2011, Plaintiff LaSandra Norman (“Norman”) filed
a Complaint in the Lake Superior Court in Crown Point, Indiana.
(DE #1).

She alleged malpractice by two of her treating dentists

at North Shore Health Centers, Drs. Nikki Dent-Wardo and Kurt N.
Richeson.

Specifically, Norman describes the nature of her claim

as follows:

accusing
Defendants
of
malpractice,
prescribing medications that gave patient
severe yeast infection. Payment of medical
bills.
Causing other teeth problems pain &
suffering,
drilling
without
numbing
medication.
(DE 1).
Because Drs. Dent-Wardo and Richeson are federal employees,
Norman’s malpractice claim falls under the Federal Tort Claims Act
(“FTCA”),

28

U.S.C

§

2671

et

seq.

Subsequent

to

filing

her

Complaint, Norman filed an administrative claim before the Claims
and Employment Law Branch of the Department of Health and Human
Services (“DHHS”).

Pursuant to 42 U.S.C. § 233(c), the case was

removed to this Court on March 16, 2011, and the United States was
substituted for Drs. Dent-Wardo and Richeson.

On April 8, 2011,

the United States filed the instant Motion for Summary Judgment
claiming that Norman’s lawsuit is premature because she filed it
before filing her administrative claim and before receiving an
agency decision.
Along with the instant motion for summary judgment, the United
States provided Plaintiff with notification pursuant to Timms v.
Frank, 953 F.2d 281, 285 (7th Cir. 1992). This notice described in
plain English what was required of Plaintiff to oppose the motion
for summary judgment.
Cir. 1982).

Lewis v. Faulkner , 689 F.2d 100, 102 (7th

Norman filed a response on April 20, 2011.

States filed its reply on April 20, 2011.
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The United

The summary judgment

motion is now fully briefed and ripe for adjudication.

DISCUSSION
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

See

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corporation.
v. Catrett, 477 U.S. 317, 322–23 (1986).

In other words, the

record must reveal that no reasonable jury could find for the
nonmovant.

Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d

332, 335 (7th Cir. 1991).

See also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).

In deciding a motion for summary

judgment, a court must view all facts in the light most favorable
to the nonmovant.

Anderson, 477 U.S. at 255; Trade Finance

Partners, LLC v. AAR Corp., 573 F.3d 401, 406 (7th Cir. 2009).
The burden is upon the movant to identify those portions of
the “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits,” if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.

Celotex, 477 U.S. at 323.

Once the movant has met

this burden, the nonmovant may not rest upon mere allegations but
“must . .

set out specific facts showing a genuine issue for

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trial.” Fed. R. Civ. P. 56(e); Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009); Becker v. Tenenbaum-Hill Assocs., Inc., 914
F.2d 107, 110 (7th Cir. 1990). “Whether a fact is material depends
on the substantive law underlying a particular claim and ‘only
disputes over facts that might affect the outcome of the suit under
governing
judgment.’”

law

will

properly

preclude

the

entry

of

summary

Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988)

(citing Anderson, 477 U.S. at 248).
“[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial.” Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original).

See also

Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
Northern District of Indiana Local Rule 56.1 requires the
moving party to file with the Court a “‘Statement of Material
Facts’ that identifies the facts that the moving party contends are
not genuinely disputed.” N.D. Ind. L.R. 56.1(a).

In response, the

opposing party is obligated to file with the Court a “‘Statement of
Genuine Issues’ that identifies the material facts that the party
contends are genuinely disputed so as to make a trial necessary."

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N.D. Ind. L.R. 56.1(b).
In this case, as the moving party, Defendant has submitted a
Statement

of

Material

supporting evidence.

Facts

with

appropriate

citations

to

However, Plaintiff has submitted a response

titled “Answer from Plaintiff for Motion Summary Judgment” which
does not contain a Statement of Genuine Issues.

More importantly,

the response is not sworn, and although several documents are
attached, those documents do not contradict any of the material
facts

set

forth

in

Defendant’s

Statement

of

Material

Fact.

Therefore, the following facts asserted by Defendant and supported
by admissible evidence are considered to exist without controversy
for the purposes of this motion for summary judgment.

Facts
Norman initiated this action by filing a Notice of Claim in
the Lake Superior Court in Crown Point, Indiana, on January 4,
2011.

That Notice of Claim named two defendants, both dentists:

Dr. Dent-Wargo and Dr. Richeson.1
both

employees

of

NorthShore

Drs. Dent-Wargo and Richeson are
Health

Centers

(“NorthShore”).

Northshore has been determined to be a federally assisted health
center and is deemed a federal employee under the Federally
Supported

Health

Centers

Assistance

1

Act

of

1995

(“FSHCAA”).

Norman erroneously referred to Dr. Richeson as Dr.
Richardson.
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NorthShore’s employees are also deemed to be federal employees. As
federal employees, NorthShore and its employees are covered under
the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2401(b) and 26712680.

The United States Attorney, as the delegee of the Attorney

General, has certified that Drs. Dent-Wargo and Richeson were
acting in the scope of their employment at the time of the events
which gave rise to Norman’s claim.

At the time Norman filed her

complaint, she had not yet filed an administrative claim with the
DHHS.
claim.2

After filing this case, Norman filed an administrative
At the time the instant motion for summary judgment was

filed, the claim was pending before the DHHS and had not yet been
ruled on. On August 15, 2011, Norman filed a motion indicating her
administrative claim had been denied, and requesting a trial date.
Defendants contend that, because Drs. Dent-Wargo and Richeson
are deemed federal employees and the FTCA therefore governs this
case, Norman was required to fully exhaust her remedies under the
2

The declaration of James Anagnos indicates the
administrative tort claim was received by DHHS on March 9, 2011.
Norman’s response, although unsworn, asserts that she filed the
administrative claim, which she refers to as a “standard 95" on
February 11, 2011. A footnote in the United States’ motion
suggests that the form was sent, unsigned, to the Department of
Justice and was therefore returned to Norman. Norman then signed
the form and returned it again to the Department of Justice,
which then forwarded the claim to the DHHS. Perhaps this
explains the discrepancy regarding the date that the
administrative claim was filed. Nonetheless, even if Norman’s
unsworn contention that it was filed on February 11, 2011, is
accepted as true, the material fact does not change: the
administrative claim was filed after this case was instituted in
the Lake Superior Court on January 4, 2011.
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FTCA prior to instituting a lawsuit, and that her failure to fully
exhaust her remedies requires that her suit be dismissed as
premature.

Drs. Dent-Wargo and Richeson are federal employees
Drs. Dent-Wargo and Richeson are employees of the federal
government by virtue of their position as employees of the Public
Health Service. See 42 U.S.C. § 233(g)(1).

Pursuant to Title 42

U.S.C. section 233, the FSHCAA, employees of federally supported
health centers are deemed federal employees, for various purposes,
including tort liability coverage.

NorthShore is a federally

assisted

this

health

clinic.

Thus,

in

case,

the

DHHS

has

determined that, because of their employment at NorthShore, Drs.
Dent-Wargo

and

Richeson

qualify

for

federal

employee

status.

Norman’s response to the instant summary judgment motion does not
contend otherwise.

The FTCA governs this action
As an outgrowth of their federal status, pursuant to 42 U.S.C.
section

233(g)-(n),

Drs.

Dent-Wargo

and

federally provided tort liability coverage.

Richeson

qualify

for

Thus, any malpractice

claims stemming from activities conducted in the scope of their
employment at NorthShore are covered by the FTCA, 28 U.S.C.
sections 1346(b), 2401(b), and 2671-2680. In order to be covered,

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both dentists’ activities must have occurred within the scope of
their employment.
United States Attorneys are authorized by the Attorney General
to determine whether a particular federal employee was “acting
within the scope” at the time of events giving rise to a tort
claim.

In this case, the United States Attorney has conclusively

certified that both Drs. Dent-Wargo and Richeson were, in fact,
acting within the scope of their employment at NorthShore during
the encounters that form the basis for Norman’s malpractice claims
against the dentists.
When federal employees who acted within the scope of their
employment are sued, the United States may be substituted for
defendant(s), and the case is subject to removal to federal court.
In this case, in compliance with the DHHS’s request to the United
States Attorney, the United States was substituted as defendant in
place of Drs. Dent-Wargo and Richeson, and the case was removed to
this Court.

Plaintiff’s claim is premature and must be dismissed.
Under the FTCA, an “action shall not be instituted upon a
claim against the United States for money damages [...] 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 [...].” See McNeil v. United States, 508 U.S.

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106, 107 (1993) (quoting 28 U.S.C. § 2675(a)) (emphasis added).
Prior to filing her complaint, a plaintiff must establish that she
filed an administrative claim before the appropriate federal agency
and that her claim was finally denied. 28 U.S.C. § 2675(a).
the other, standing alone, is insufficient.

One or

In other words, prior

to filing her complaint, a plaintiff must fully exhaust her
administrative remedies.

See McNeil, 508 U.S. at 107.

The receipt of a final disposition before any “substantial
progress” is made in the litigation is insufficient.

Id.

Prior to

1993, circuits disagreed as to whether a plaintiff who prematurely
instituted
progress”
exhausted.

an
had

FTCA

action

occurred

when

could
the

proceed

if

no

administrative

“substantial
remedies

were

The Seventh Circuit took the position that such suits

were premature and must be dismissed. See McNeil v. United States,
964 F.2d 647 (7th Cir. 1992).
In McNeil, the Seventh Circuit considered whether a pro se
prisoner’s FTCA claim was filed prematurely in light of the fact
that the plaintiff had failed to first pursue available remedies
through the DHHS.

McNeil filed his complaint in March of 1989 and

filed his DHHS claim in June of 1989.
denied in July of 1989.
premature.

His claim was eventually

The district court dismissed his suit as

On appeal, the Seventh Circuit acknowledged that two

circuits have found that “[t]o hold that refiling was necessary
would involve duplicitous pleadings and wasted effort.” See McNeil,

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964 F. 2d at 648. However, in McNeil’s case, the Seventh Circuit
construed FCTA section 2675(a) quite literally, reasoning that the
“statute does not authorize or postpone adjudication of suits; it
forbids the institution of suits prior to the administrative
decision” (emphasis added).

See id.

In 1993, the Supreme Court

affirmed the Seventh Circuit’s holding in McNeil, conclusively
settling

the

exhaustion

of

administrative

remedies

question.

McNeil, 508 U.S. at 113.
Norman filed her Complaint on January 4, 2011, over two months
before filing her DHHS administrative claim on March 9, 2011.3

At

the time the United States filed the instant Motion for Summary
Judgment, Norman was still approximately five months short of a
final agency disposition: the DHHS denied her claim in August of
2011.

Her original Complaint filed on January 4, 2011, was

premature.
“The FTCA bars claimants from bringing suit in federal court
until they have exhausted their administrative remedies.”
508 U.S. at 113.

McNeil,

Because Norman “failed to heed that clear

statutory command,” this Court lacks subject matter jurisdiction
over her suit, and it must be dismissed.

Id.; Loper v. United

States, 904 F.Supp. 863 (N.D. Ind. 1995)(“District courts lack
subject matter jurisdiction over suits filed under the FTCA if the
3

If Plaintiff’s unsworn assertion that the administrative
claim was filed in February is accepted, then the complaint was
filed one month before her DHHS administrative claim was filed.
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plaintiffs have failed to comply with the FTCA’s requirements.”).
Seventh Circuit precedent is clear: Ms. Norman must re-file
her case within six months of her administrative agency disposition
or forfeit any available remedy.

See McNeil, 508 U.S at 106

(affirming the Seventh Circuit’s holding that plaintiff must refile even if no “substantial progress” has yet taken place in the
litigation).

CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment (DE #11) is GRANTED and
trial date is DENIED AS MOOT.

Plaintiff’s motion for a

The Clerk is ORDERED to DISMISS this

case without prejudice.

DATED: November 08, 2011

/s/RUDY LOZANO, Judge
United States District Court

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