Carrizales v. United States of America

Filing 17

MEMORANDUM AND ORDER that filing (10) in case 8:14-cv-03104-RGK-CRZ is granted, as follows: The United States is substituted as the party defendant in the place of OneWorld Community Health Centers, Inc., d/b/a OneWorld Community Health Center, an d the action is dismissed without prejudice for lack of subject matter jurisdiction; and filing (9) in case 8:14-cv-03105-RGK-CRZ is granted, as follows: The United States is substituted as the party defendant in the place of Maribel R. Hamm, and the action is dismissed without prejudice for lack of subject matter jurisdiction. Final judgment shall be entered in each case by separate document. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

NATASHA CARRIZALES, individually and )
on behalf of NINA CARRIZALES, a minor, )
as her guardian and next friend,
)
)
Plaintiff,
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)

8:14CV3104

NATASHA CARRIZALES, individually and )
on behalf of NINA CARRIZALES, a minor, )
)
as her guardian and next friend,
)
)
Plaintiff,
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.

8:14CV3105

MEMORANDUM AND ORDER
On October 30, 2013, the plaintiff, Natasha Carrizales, individually and on
behalf of her 2-year-old daughter, Nina Carrizales, filed two medical malpractice
actions in the District Court of Douglas County, Nebraska. On May 19, 2014, both
actions were removed to this court when the United States Attorney certified that the
named defendants, OneWorld Community Health Centers, Inc., d/b/a OneWorld
Community Health Center (“OneWorld”), and Maribel R. Hamm (“Hamm”), were

acting within the scope of their employment as employees of the United States.1
Immediately following the removal, the United States filed a notice of substitution in
each case which was acted upon by the clerk of the court.2 The United States now
seeks a formal order substituting it as the sole defendant in each case and moves for
dismissal of the actions because the plaintiff failed to exhaust her administrative
remedies under the Federal Tort Claims Act before bringing suit. For the reasons
discussed below, the substitution of parties will be ordered and the government’s
motions to dismiss will be granted.
I. DISCUSSION
A. The Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) confers exclusive jurisdiction upon
United States district courts over civil actions for money damages alleged to have
been caused by the negligent or wrongful act or omission of any employee of the
government acting within the scope of his or her employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred. 28 U.S.C.
§ 1346(b)(1). However, the Act provides:
An action shall not be instituted upon a claim against the United States
for money damages for ... personal 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

1

OneWorld was the only named defendant in the action which is now docketed
as Case No. 8:14CV3104. Hamm was the only named defendant in the action which
is now docketed as Case NO. 8:14CV 3105.
2

On May 22, 2014, the clerk, at the direction of the magistrate judge, made an
entry on the docket sheet in each case which terminated the original defendants and,
in their places, substituted the United States as the defendant.
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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). This is a jurisdictional requirement. See Mader v. United States,
654 F.3d 794, 808 (8th Cir. 2011) (“[C]onformity with § 2675(a) is a jurisdictional
term of the FTCA’s limited waiver of sovereign immunity.”).
B. The Federally Supported Health Centers Assistance Act
Under the Federally Supported Health Centers Assistance Act of 1992
(“FSHCAA”), as amended at 42 U.S.C. § 233(g)-(n), the United States has made itself
liable for the medical malpractice of federally supported community health centers,
their officers, employees, and, in limited circumstances, those who contract to perform
medical services for those centers. See Dedrick v. Youngblood, 200 F.3d 744, 744-45
(11th Cir. 2000). Where such a community health center or individual is covered by
the FTCA, the exclusive remedy for damages for personal injury or death resulting
from the performance of medical or related functions within the scope of office or
employment is an FTCA action against the United States. See 42 U.S.C. § 233(a) and
(g); see also 28 U.S.C. §§ 1346, 2671.
In 1995, Congress amended the FSHCAA, see Pub. L. No. 104-73, 109 Stat.
777-781 (Dec. 26, 1995), and delegated to the Secretary of Health and Human
Services (“HHS”) the authority to determine whether a community health center is
deemed to be an employee of the Public Health Service for purposes of 42 U.S.C.
§ 233 and the FTCA. See 42 U.S.C. § 233(g)-(h). “Once the Secretary makes a
determination that an entity ... is deemed to be an employee of the Public Health
Services for purposes of [section 233], the determination shall be final and binding
upon the Secretary and the Attorney General and other parties to any civil action or
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proceeding.” 42 U.S.C § 233(g)(1)(F). “[Such] an entity ... or employee of such an
entity, ... shall be deemed to be an employee of the Public Health Service [and] ...[t]he
remedy against the United States for an entity ... and ... employee ... of such an entity
who is deemed to be an employee of the Public Health Service ... shall be exclusive
of any other civil action or proceeding to the same extent as the remedy against the
United States is exclusive pursuant to [section 233(a)].” 42 U.S.C. § 233(g)(1)(A).3
42 U.S.C. § 233(b) provides that the Attorney General shall defend any civil
action brought in court against any officer or employee of the Public Health Service
acting in the scope of his employment. “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 ....” 42 U.S.C. § 233(c); see also 28 C.F.R. § 15.4(a) & (b)
(“The United States Attorney for the district where the civil action or proceeding is
brought ... is authorized to make the statutory certification that the Federal employee
was acting within the scope of his office or employment with the Federal Government
at the time of the incident out of which the suit arose ... [and] that the covered person
was acting at the time of the incident out of which the suit arose under circumstances
in which Congress has provided by statute that the remedy provided by the Federal
Tort Claims Act is made the exclusive remedy.”).

3

Section 233(a) provides, as to “any ... employee of the Public Health Service
... acting within the scope of his ... employment,” that the FTCA remedy against the
United States “shall be exclusive of any other civil action or proceeding . . . for
personal injury, including death, resulting from the performance of medical, surgical,
dental, or related functions” by such employee. 42 U.S.C. § 233(a).
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C. The Plaintiff’s Claims
The plaintiff alleges that on October 30, 2011, she was provided negligent
medical treatment by Hamm, a certified nurse midwife, during labor and delivery of
her daughter Nina at the Creighton University Medical Center – St. Joseph Hospital,
and, as a consequence, that Nina is now severely disabled from hypoxic-ischemic
encephalopathy. The government has produced evidence that two administrative tort
claims were filed on October 29, 2013, on behalf of the plaintiff and her daughter,
relating to medical care provided by Hamm as an employee of OneWorld, and that to
date no final disposition has been made of either claim.
D. Substitution of the United States as Defendant in Each Action
These cases were removed from state court with the certification of United
States Attorney Deborah R. Gilg, filed under authority of 42 U.S.C. § 233(c) and 28
C.F.R. § 15.4(a) & (b). Her certification that OneWorld and Hamm were deemed to
be federal employees cannot be contested by either side. See 42 U.S.C § 233(g)(1)(F).
Her further certification that OneWorld and Hamm were acting within the scope of
their employment, while not conclusive, does constitute prima facie evidence of such
fact. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). “Therefore,
‘the burden of altering that status quo’ is on the plaintiff, who must come forward with
specific facts rebutting the government’s scope-of-employment certification.” Brown
v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991). Because the plaintiff has not
produced any rebuttal evidence, the United States will be substituted as the defendant
in each action. See Divers v. Halls, No.4:12CV3226, 2013 WL 459633, *2 (D.Neb.
Feb. 7, 2013) (ordering substitution); see also Hui v. Castaneda, 559 U.S. 799, 811
n. 9 (2010) (observing that 42 U.S.C. § 233(c), unlike 28 U.S.C. § 2679(d), “does not
prescribe a particular mechanism for substituting the United States in federal-court
actions.”).

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E. Dismissal of Claims for Failure to Exhaust Administrative Remedies
Absent full compliance with the conditions placed upon the limited waiver of
sovereign immunity provided by the FTCA, the court lacks jurisdiction to entertain
tort claims against the United States. See Walker v. United States, 176 F.3d 437, 438
(8th Cir. 1999). The FTCA allows a federal agency a period of 6 months to make a
final disposition of a claim, after which time the claimant has the option of filing suit.
See 28 U.S.C. § 2675(a).
The government’s evidence shows that administrative claims were filed on
October 29, 2013, just 1 day prior to the commencement of these actions. Although
more than 6 months elapsed while the cases were pending in state court, with no final
disposition having been made of the claims, this fact does not affect the jurisdictional
analysis. See McNeil v. United States, 508 U.S. 106, 111-12 (1993) (exhaustion
requirement not satisfied by receipt of agency rejection of claim occurring after
commencement of suit but before any substantial progress had taken place in the
litigation; abrogating Celestine v. Veterans Administration Hospital, 746 F.2d 1360,
1363 (8th Cir. 1984)). “Section 2675 is more than a mere statement of procedural
niceties. It requires that jurisdiction must exist at the time the complaint is filed.”
Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981) (district court was required to
dismiss for lack of jurisdiction where plaintiff did not wait 6 months before filing suit;
running of 6-month period did not render requirement “meaningless”); Jerves v.
United States, 966 F.2d 517, 521 (9th Cir. 1992) (administrative claim requirements
of § 2675(a) are jurisdictional in nature and must be strictly adhered to); but see
Meijers v. People’s Health Center, No. 4:13CV3064, 2013 WL 3270548, *3 (D.Neb.
June 26, 2013) (plaintiff granted leave sua sponte to file amended complaint following
expiration of 6-month period to allege, if applicable, that HHS had not made final
disposition of his administrative claim while case was pending).

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II. CONCLUSION
It is understandable that the plaintiff filed suit against OneWorld and Hamm
when she did,4 but it is now clear that the United States is the only proper defendant
and, as to it, that the actions were filed prematurely. Accordingly,
IT IS ORDERED:
1.

Filing 10 in Case No. 8:14CV3104 is granted, as follows: The United
States is substituted as the party defendant in the place of OneWorld
Community Health Centers, Inc., d/b/a OneWorld Community Health
Center, and the action is dismissed without prejudice for lack of subject
matter jurisdiction.

2.

Filing 9 in Case No. 8:14CV3105 is granted, as follows: The United
States is substituted as the party defendant in the place of Maribel R.
Hamm, and the action is dismissed without prejudice for lack of subject
matter jurisdiction.

3.

Final judgment shall be entered in each case by separate document.

DATED this 10th day of September, 2014.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4

The plaintiff was faced with a 2-year statute of limitations and was uncertain
whether OneWorld and Hamm were acting within the scope of their employment as
federal employees at the time of their alleged negligence.
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