Meijers v. People's Health Center
Filing
15
MEMORANDUM AND ORDER granting in part and denying in part 8 Defendants' Motion to Dismiss. Defendants' motion to substitute the United States as defendant is granted. The United States shall be substituted for the named defendants. Defen dants' motion to dismiss is granted. Meijer's complaint is dismissed without prejudice. However, Meijers may file an amended complaint on or before July 26, 2013. If Meijers fails to file an amended complaint by that time, this case will be dismissed without prejudice and without further notice. Defendants' motion to consolidate is denied as moot. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFF MEIJERS,
Plaintiff,
4:13-CV-3064
vs.
MEMORANDUM AND ORDER
PEOPLE'S HEALTH CENTER and
D.D.S. REDDY,
Defendants.
This medical malpractice case was originally filed in state court in
Lancaster County, Nebraska. Plaintiff Jeff Meijers' complaint alleges that on
December 14, 2010, he was undergoing a dental procedure at the People's
Health Center (PHC) in Lincoln, Nebraska, and that during that procedure,
"D.D.S. Reddy" sprayed a large amount of water into his lungs. 1 According to
Meijers, this caused him to cough violently and ultimately "shredded" his
aortic heart valve. Filing 1-1 at 2. As a result, Meijers alleges, he had to have
his right lung drained and his aortic valve replaced. Filing 1-1 at 3–6. Meijers
seeks damages for medical expenses as well as pain and suffering. Filing 1-1
at 6–8. Liberally construed, Meijers has asserted claims for medical
negligence or malpractice arising under state tort law.
Defendants PHC and Reddy removed this action to this Court under
the authority of 42 U.S.C. § 233(c), which provides in part:
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 without
bond at any time before trial by the Attorney General to the
district court of the United States of the district and division
embracing the place wherein it is pending and the proceeding
deemed a tort action brought against the United States under the
provisions of Title 28 and all references thereto. . . .
1
"D.D.S. Reddy" is actually Arathi Reddy, D.D.S. (Doctor of Dental Surgery). Filing 10 at 1.
Defendants have filed a certification signed by the United States
Attorney for the District of Nebraska stating that PHC and Reddy were
acting within the scope of their employment as employees of the United
States at the time of the conduct alleged in the complaint.2 Filing 1-2.
Defendants have now moved to dismiss this case pursuant to Federal
Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. Filing
8. Defendants assert that Meijers has failed to exhaust his administrative
remedies, as required by the Federal Tort Claims Act (FTCA), 28 U.S.C. §
2671 et seq. Defendants have also moved to substitute the United States of
America as the sole named defendant, and to consolidate this case with an
essentially identical case that Meijers previously filed directly in federal
court (case no. 4:12-cv-3248). Filing 8. For the reasons discussed below,
defendants' motion to dismiss and motion to substitute will be granted, and
the motion to consolidate will be denied as moot.
STANDARD OF REVIEW
A motion pursuant to Federal Rule of Civil Procedure 12(b)(1)
challenges whether the Court has subject matter jurisdiction. The party
asserting subject matter jurisdiction bears the burden of proof. Great Rivers
Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). A Rule 12(b)(1)
motion can be presented as either a "facial" or a "factual" challenge. Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). When reviewing a facial
challenge, the Court restricts itself to the face of the pleadings, and the
nonmovant receives the same protections as it would facing a Rule 12(b)(6)
motion. Id. By contrast, when reviewing a factual challenge, the Court
considers matters outside the pleadings, and the nonmovant does not receive
the benefit of Rule 12(b)(6) safeguards. Id. Moreover, unlike a motion for
summary judgment, the Court is free to resolve disputed issues of fact. Jessie
v. Potter, 516 F.3d 709, 712 (8th Cir. 2008). In this case, defendants have
presented a factual challenge.
ANALYSIS
The United States extends grants to certain entities that provide
primary health care services. See 42 U.S.C. § 254b. Pursuant to the Federally
Supported Health Centers Assistance Act of 1992, entities receiving funding
under § 254b, as well as their employees, may be deemed employees of the
Public Health Service for purposes of the FTCA. See 42 U.S.C. § 233(g)-(n).
The FTCA, in turn, provides that the exclusive remedy for damages for
personal injury resulting from the performance of medical, dental, or related
Pursuant to 28 C.F.R. § 15.4(a), the United States Attorney is authorized to make the
§ 233(c) certification in place of the Attorney General.
2
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functions by deemed employees acting within the scope of their employment
is an action against the United States. See 42 U.S.C. § 233(a) & (g)(1)(A); see
also 28 U.S.C. § 1346(b). Under the FTCA, a plaintiff must first exhaust his
administrative remedies before bringing suit in federal court. 28 U.S.C. §
2675(a). Compliance with § 2675(a) is jurisdictional and must be pleaded and
proven by the plaintiff. Mader v. United States, 654 F.3d 794, 808 (8th Cir.
2011); Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993).
In this case, records maintained by the United States Department of
Health and Human Services establish that at all relevant times, PHC was
deemed to be a federal employee, and that Reddy was an employee of PHC.
Filing 9-1. The Department's records further show that Meijers filed an
administrative tort claim with the Department on December 20, 2012. As of
the filing of defendants' motion to dismiss, a final determination had yet to be
made on Meijer's administrative claim. Filing 9-1 at 1. Meijers has therefore
failed to demonstrate that he has properly exhausted his administrative
remedies.
Since that time, however, a final determination may have been made.
The FTCA provides that if a federal agency has not made a final disposition
of a claim within 6 months of the administrative filing, the plaintiff may at
his option deem the lack of action a final denial for exhaustion purposes. 28
U.S.C. § 2675(a). The Court notes that this 6-month period very recently
expired. So, rather than dismissing this case, the Court will grant Meijers
leave to file an amended complaint.
If Meijers elects to file an amended complaint, he shall do so on or
before July 26, 2013. The amended complaint shall restate the allegations of
Meijer's current complaint, and any new allegations. Specifically, the
amended complaint shall set forth what, if any, action has been taken by the
Department of Health and Human Services regarding Meijers'
administrative claim. If no action has been taken, Meijers should so state and
also state whether he is choosing to deem this a final denial of his claim for
purposes of § 2675(a). If Meijers fails to file an amended complaint in
accordance with this Memorandum and Order, this case will be dismissed
without prejudice, and without further notice.
The Court further finds that the United States should be substituted as
the named defendant in the place of PHC and Reddy. As noted above, the
United States Attorney has certified that PHC and Reddy were acting within
the scope of their employment as employees of the United States at the time
of the conduct alleged in the complaint. Meijers has not come forward with
any evidence to rebut the certification. Accordingly, substitution of the
United States as defendant is appropriate. Glorvigen v. Cirrus Design Corp.,
-3-
2006 WL 3043222, at *1–2 (D. Minn. 2006); see also Divers v. Halls, 2013 WL
459633, at *2 (D. Neb. 2013).
Finally, the Court finds that defendants' motion to consolidate should
be denied as moot. Since the motion was filed, Meijers' other case has been
dismissed. See case no. 4:12-cv-3248 filings 10 and 11. Accordingly,
IT IS ORDERED:
1.
Defendants' motion (filing 8) is granted in part and denied
in part as follows:
A.
Defendants' motion to substitute the United States as
defendant is granted. The United States shall be
substituted for the named defendants.
B.
Defendants' motion to dismiss is granted. Meijer's
complaint is dismissed without prejudice. However,
Meijers may file an amended complaint on or before
July 26, 2013. If Meijers fails to file an amended
complaint by that time, this case will be dismissed
without prejudice and without further notice.
C.
Defendants' motion to consolidate is denied as moot.
Dated this 26th day of June, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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