Gordon v. Lee et al

Filing 115

ORDER denying 89 Motion to Dismiss; finding as moot 97 Motion for Extension of Time to File Response/Reply as set out in the Order. Signed by Chief District Judge Daniel P. Jordan III on January 11, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KEITH A. GORDON

PLAINTIFF

V.

CIVIL ACTION NO. 3:17-CV-084-DPJ-KFB

CENEDRA D. LEE, ET AL.

DEFENDANTS
ORDER

This matter is before the Court on the Motion to Dismiss [89] and Motion for Extension
of Time [97] filed by Defendant the United States of America (the “Government”). For the
reasons that follow, the Court denies the Government’s motion to dismiss without prejudice and
denies its motion for additional time as moot.
I.

Background
Gordon’s case stems from complaints about the medical treatment he received for a

hernia. After visiting other doctors, Gordon came to Dr. Meseret Teferra, a doctor at Family
Health Care Clinic (“FHCC”), complaining about pain. Dr. Teferra ordered ultrasounds though
Gordon told the doctor he needed a CT scan instead because an earlier ultrasound failed to detect
the problem. Some months later, Gordon received a CT scan; the hernia was detected; and
Gordon underwent emergency surgery. See Compl. [1] at 5.
Based on these and other alleged facts, Gordon alleged that Dr. Teferra and FHCC
committed malpractice and violated his civil rights. He therefore asserted pro se claims against
those defendants under 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”). He also
asserted state-law claims against other defendants who remain in this case.
On February 27, 2018, the Government moved to substitute itself for Dr. Teferra and
FHCC under the Federally Supported Health Centers Assistance Act of 1992, see 42 U.S.C.

§ 233. Gordon did not oppose the motion at that time—though he now does—and the
Government was substituted on March 29, 2018. See Mar. 29, 2018 Text-Only Order.
The Government now moves to dismiss Gordon’s claims against it for four reasons: (1)
Gordon failed to properly serve the United States Attorney and Attorney General; (2) he did not
exhaust his administrative remedies under the FTCA; (3) he failed to state a claim for relief
under Mississippi law; and (4) his constitutional claims are barred. See Def.’s Mem. [90].
Gordon responded [95] and filed a separate memorandum of law [96]. The Government then
sought a short extension before filing a three-page reply [97]. The reply did not address many
of Gordon’s substantive arguments.
Some of those arguments seem frivolous, but others may not be. Plus, there are
jurisdictional and procedural issues the parties did not address. While it is not the Court’s
intent to help either side, it does have an independent duty to ensure jurisdiction and needs
substantive input from the parties. Finally, there are potentially dispositive motions that neither
side has addressed, yet the Court cannot rule on such issues without giving both sides notice and
an opportunity to be heard. See John Deere Co. v. Am. Nat.’l Bank, Stafford, 809 F.2d 1190,
1192 (5th Cir. 1987).
This leaves the Court with three options: (1) deny the motion without prejudice; (2)
research the issues sua sponte; or (3) allow the Government to file supplemental briefing.
While the third option has some appeal, it would be unfair to Gordon to give the Government a
second bite at the apple without allowing Gordon an opportunity to respond. And if he
responded, then the Government would be entitled as the movant to the final word.

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Accordingly, it is better to deny the motion without prejudice and start over with some direction
from the Court.
II.

Instructions Upon Refiling
In addition to issues the parties themselves may raise during this process, the Court has

questions they should address related to the Government’s four grounds for dismissal.
A.

Ineffective Service of Process

The parties seem to agree that Gordon served Dr. Teferra and FHCC rather than the
United States Attorney and the Attorney General. But Gordon offers three responses: (1)
service was proper; (2) even if improper, Defendants waived this defense; and (3) the
Government was improperly substituted in violation of 28 U.S.C. § 2680(a) and (h) and cannot
therefore assert this defense. Pl.’s Mem. [96] at 3–4. The Government offered a conclusory
reply to the first argument and skipped the second two. Def.’s Reply [100] at 1.
The Government may well be correct that the method of service was insufficient. But
even so, the Government needs to address Plaintiff’s § 2680 and waiver arguments.
Moreover, if service was improper, both parties need to address whether dismissal should
be with or without prejudice. While Federal Rule of Civil Procedure 4(m) states that dismissal
for failing to timely perfect service is without prejudice, there are cases affirming dismissal with
prejudice where the complaint is otherwise futile. See Gregory v. United States, 942 F.2d 1498,
1500–01 (10th Cir. 1991).
Under a futility theory, the Court might consider the Government’s Rule 12(b)(6)
arguments, but only to the extent necessary to determine whether dismissal under Rule 12(b)(5)
should be with prejudice. In other words, absent proper service, the Court would not rule on the
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merits under Rule 12(b)(6), but it could consider whether those arguments render the Complaint
futile. Neither party addressed this issue, and the Court desires argument.1
B.

Failure to Exhaust

The Government says Gordon failed to exhaust his FTCA claims, but Gordon says
exhaustion would be futile. Pl.’s Mem. [96] at 4. The Government did not offer a reply. On
this issue, the Court would like to know which subpart of Rule 12 the Government invokes.
The answer affects the proper scope of the record for review. It might also affect whether the
issue is jurisdictional issue. In addition, the Government needs to address Gordon’s futility
argument. Finally, as with the Rule 12(b)(5) argument, the Court is unsure whether a finding
for the Government would lead to dismissal with or without prejudice and whether it would
preclude a Rule 12(b)(6) ruling on the substantive claims.
C.

Whether Gordon Failed to State a Claim under Mississippi Law

The parties agree that Gordon’s FTCA claim depends on his ability to prove a medicalmalpractice claim under Mississippi law. The Government says he cannot because he lacks
expert testimony establishing a breach of the standard of care that proximately caused his
injuries. Def.’s Mem. [90] at 6. But the cases the Government cites are in the summaryjudgment context. So the parties should consider whether a plaintiff in Mississippi needs expert
opinion to survive a Rule 12(b)(6) challenge in a medical-malpractice case.

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These are not academic questions. If the Government ultimately prevails on this motion and
obtains the dismissal of the federal claims, the Court would be left with state-law claims among
non-diverse parties. Thus, it would have to decide whether to exercise supplemental jurisdiction
under 28 U.S.C. § 1367(c). Whether dismissal is with or without prejudice could impact that
analysis.
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D.

Whether Gordon’s Constitutional Claims are Barred

The Government sufficiently addressed this argument, but the Court remains unclear
whether its ruling should reach these issues if service of process was insufficient or if Gordon
failed to exhaust his administrative remedies. Again, the parties should address those issue.
Finally, the Court is not sure what the Government means when it seeks dismissal of the
“individually named federal defendants” based on immunity. See Reply [100] at 3. Assuming
a valid substitution of parties, it would seem that there are no claims against the individuals that
could be dismissed.
III.

Conclusion
To be clear, the Court has not researched the issues it has asked the parties to address.

Indeed some may be easily answered. But at a minimum, the Court needs to hear from the
parties before ruling. So for the reasons stated, the Court denies the Government’s Motion to
Dismiss [89] without prejudice to refiling. The Court would normally grant the motion for
additional time given the absence of any real delay or prejudice, but because the motion to
dismiss is denied without prejudice, the motion for time [97] is moot.
Finally, absent entry of a stay based on the government shutdown, the Government is
given Fourteen days to file its motion. If a stay is entered—as has occurred in most civil cases
involving the United States Attorney’s office—the motion will be due Fourteen days after the
stay is lifted.
SO ORDERED AND ADJUDGED this the 11th day of January, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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